Mass OP, LLC v Principal Life Ins. Co.

Mass OP, LLC v Principal Life Ins. Co. 2012 NY Slip Op 06926 Decided on October 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
LEONARD B. AUSTIN, JJ.
2009-07836
(Index No. 4457/09)

[*1]Mass OP, LLC, et al., appellants,

v

Principal Life Insurance Company, respondent, et al., defendants.




June Diamant, Cedarhurst, N.Y., and Lazer, Aptheker, Rosella &
Yedid, P.C., Melville, N.Y. (Steven Aptheker and Russell L. Penzer
of counsel), for appellants (one brief filed).
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York,
N.Y. (Joshua A. Zielinski of counsel),
for respondent.


DECISION & ORDER

In an action to recover damages for breach of contract and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered July 8, 2009, as granted that branch of the motion of the defendant Principal Life Insurance Company which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Pursuant to CPLR 3211(a)(1), a party may move to dismiss a complaint based on documentary evidence which conclusively establishes, as a matter of law, a defense to the asserted claims (see Leon v Martinez, 84 NY2d 83, 88; Moore v Liberty Power Corp., LLC, 72 AD3d 660, 661). Here, the documentary evidence in the record conclusively establishes, as a matter of law, defenses to the complaint, which alleged breach of contract and fraud, insofar as asserted against the defendant Principal Life Insurance Company. Accordingly, the Supreme Court properly granted that branch of that defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss those causes of action insofar as asserted against it.

In light of our determination, we need not reach the plaintiffs' remaining contentions.
FLORIO, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court