Raytsin v Morgan Stanley Dean Witter Credit Corp.

[*1] Raytsin v Morgan Stanley Dean Witter Credit Corp. 2005 NY Slip Op 50105(U) Decided on February 2, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-519 K C

CONSTANTINE RAYTSIN, Appellant,

against

MORGAN STANLEY DEAN WITTER CREDIT CORPORATION, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Prus, J.), entered January 27, 2004, granting defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Order unanimously affirmed with $10 costs.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded in the complaint are presumed to be true in order to determine whether the allegations fit within any cognizable legal claim (Morone v Morone, 50 NY2d 481, 484 [1980]; Perl v Smith Barney, 230 AD2d 664, 666 [1996]). However, where the allegations consist of bare legal conclusions or factual claims that are flatly contradicted by the record, they are not entitled to such consideration (see Mohan v Hollander, 303 AD2d 473 [2003]; Mayer v Sanders, 264 AD2d 827 [1999]).

To the extent that plaintiff is alleging fraud on the part of defendant, his allegations are not sufficient to sustain such cause of action (see Kline v Taukpoint Realty Corp., 302 AD2d 433 [2003]). Moreover, the issue of whether an original copy of the underlying promissory obligation was required was already previously litigated and decided against plaintiff in a related case (see Discover Bank v Raytsin, 4 Misc 3d 126[A], 2004 NY Slip Op 50590[U] [App Term, 2d & 11th Jud Dists]). The facts alleged in the complaint do not state a cognizable legal claim against this defendant. Accordingly, the court below did not err in dismissing the complaint [*2]pursuant to CPLR 3211 (a) (7).
Decision Date: February 02, 2005