Start El., LLC v Macombs Place, LLC

[*1] Start El., LLC v Macombs Place, LLC 2018 NY Slip Op 51229(U) Decided on August 21, 2018 Civil Court Of The City Of New York, Bronx County Gomez, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2018
Civil Court of the City of New York, Bronx County

Start Elevator, LLC, Plaintiff,

against

Macombs Place, LLC, Defendant.



9946-18



Attorneys for Plaintiff: William A. Gogel

Attorney for Defendant: Christ Law PLCC
Fidel E. Gomez, J.

Defendant's motion to dismiss plaintiff's complaint pursuant to CPLR § 3211(a)(7) is denied.

Generally, the standard of review on a motion to dismiss, pursuant to CPLR § 3211(a)(7), is "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzberg, 43 NY2d 268, 274-75 [1977]). The Court of Appeals held

[i]n considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), our well-settled task is to determine whether, 'accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated'

(Campaign for Fiscal Equity, Inc. v State, 86 NY2d 307, 318 [1995]).

However, when the movant tenders evidentiary material in support of a motion to dismiss, the test is whether the plaintiff has a cause of action, not whether he/she has properly stated one (Guggenheimer at 275; Rappaport v International Playtex Corp., 43 AD2d 393, 394-[*2]95 [3d Dept 1974]). Stated differently, where the defendant offers documents extrinsic to the pleadings, the court need not assume the truthfulness of the allegations in the complaint, and instead, the criterion is whether the plaintiff actually has a cause of action (id. at 395). Notably, if the defendant tenders extrinsic proof, the complaint should not be dismissed unless such proof demonstrates that a material fact alleged by the plaintiff "is not a fact at all" and that "no significant dispute exists regarding it" (Pechko v Gendelman, 20 AD3d 404, 406-407 [2d Dept 2005]).

When plaintiff tenders affidavits in opposition to a motion to dismiss, the court may consider additional facts contained therein to remedy any defects in the complaint, thereby preserving inartfully pleaded, but potentially meritorious, claims (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635-36 [1976]; Sheridan v Carter, 48 AD3d 444, 445 [2d Dept 2008]).

Based on the foregoing, it is clear that a motion to dismiss pursuant to CPLR § 3211(a)(7) is directed at the pleadings, thus, requiring annexation of the complaint, as it is integral to the court's determination. To be sure, in L. Magarian & Co., Inc. v Timberland Co. (246 AD2d 69 [1st Dept 1997]), the court laid out the applicable standard, stating that

[d]espite the strong presumptions favoring the complaint on a CPLR 3211(a)(7) motion, such as that the court must accept each factual allegation as true and make no effort to evaluate the ultimate merits of the case; that the complaint should be liberally construed in favor of the non-moving party; that a claim should not be dismissed "when a cause of action may be discerned no matter how poorly stated"; that any fact that can be fairly implied from the pleadings will be deemed alleged; and that facts from affidavits may be considered as supplementary to the complaint to show the cause of action to be valid

(id. at 69 [internal citations omitted and emphasis added]).

Similarly, in Schwartz v Marjolet, Inc. (214 AD 530 [1st Dept 1925]), where the defendant moved for dismissal of the complaint for insufficiency and the notice of motion referred to the complaint as a whole and not specific parts thereof, the court denied that part of the motion, stating that

[t]his notice is, accordingly, vague and defective, so far as it challenges allegations of the pleading as not being definite and certain, or such as should be stricken out as 'sham, frivolous, irrelevant, redundant, repetitious, unnecessary, impertinent, or scandalous.' As it refers to no particular parts of the complaint it is insufficient to bring before the court a motion to strike out allegations as sham, frivolous, irrelevant, redundant, repetitious, unnecessary, impertinent, or scandalous

(id. at 531 [emphasis added]).

Lastly, in Alizio v Perpignano (225 AD2d 723 [2d Dept 1996]), the defendants failed to attach a copy of the complaint to their motion papers, thereby failing to provide the court with the very pleading necessary to establish the validity of their defenses (id. at 724-25). As such, it was impossible for the trial court in Alizio to discern the plaintiff's theories of recoveries and the order which granted the motion to dismiss was reversed on appeal.

Thus, inclusion of the complaint is a necessary part of any motion pursuant to CPLR § 3211(a)(7) and the failure to annex the same warrants denial (see Biscone v JetBlue Airways Corp., 103 AD3d 158, 178 [2d Dept 2012] ["There is no authority for compelling [a court] to [*3]consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214(c), the court may refuse to consider improperly submitted papers."]; 1501 Corp. v Leilenok Realty Corp., 2015 WL 2344489 [Sup Ct, Queens County 2015] ["The motion by defendant to dismiss . . . for failure to state a cause of action pursuant to CPLR 3211(a)(7) is denied. Movant failed to annex a copy of the amended complaint it seeks to dismiss herein. As such, the court is unable to determine whether the amended complaint, in fact, is legally sufficient to withstand a motion to dismiss."]). Accordingly, here, where the defendant moves for dismissal for plaintiff's failure to state a cause of action but fails to annex the complaint, the court must deny the motion.

Given the submission of extrinsic evidence by the parties, they implicitly urge this Court to treat the instant motion as one for summary judgment pursuant to CPLR § 3211(c) (Four Seasons Hotels Ltd. v Vinnik, 127 AD2d 310, 319-320 [1st Dept 1987] [While generally no motion seeking dismissal ought to be converted to one for summary judgment absent notice to the parties, notice is obviated when "both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course."]). However, assuming arguendo, were the court to convert this motion to dismiss into one for summary judgment pursuant to CPLR § 3211(c), the court would deny the motion nonetheless. First, pursuant to CPLR § 3212(b), "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR § 3212[b]). Thus, the failure to annex the pleadings to a motion for summary judgment is fatal, warranting denial of such motion (Wider v Heller, 24 AD3d 443, 443 [2d Dept 2005]). Here, for the same reason warranting denial of defendant's motion to dismiss — failure to annex the pleadings — a motion for summary judgment would similarly be denied.

Second, the evidence submitted in support of this motion is not in admissible form as there is no foundation for the same in the affidavit submitted by defendant. To be sure, on a motion for for summary judgment, the evidence submitted must be in admissible form so as to establish sufficiently the existence or absence of a question of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegard v New York University Medical Center, 64 NY2d 851, 853 [1985]). Insofar as relevant here, pursuant to CPLR § 4518, in order for a business record to be admissible as an exception to the rule against hearsay, a proper foundation must be laid. Specifically,

that the record be made in the regular course of business—essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business . . . that it be the regular course of such business to make the record (a double requirement of regularity)—essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and . . . that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured

(People v Kennedy, 68 NY2d 569, 579-80 [1986]).

Here, defendant's affidavit in support of its motion to dismiss by Rona Swain (Swain), defendant's Manager, fails to lay a foundation for the monthly invoices annexed. Significantly, Swain never states that it is her role as Manager, who runs the day to day operations, to routinely receive monthly invoices and create records of payment in the regular course of business; that it [*4]is in the regular course of defendant's business to make such records; and that such records were made at or about the time of the events in question. Accordingly, the foregoing invoices are not in admissible form and cannot be considered in support of summary judgment.

Therefore, defendant's motion to dismiss is denied. It is hereby

ORDERED that the parties appear for pre-trial conference on October 1, 2018 at 9:30 a.m. in Room 503 of the Bronx Civil Court at 851 Grand Concourse, Bronx, New York. It is further

ORDERED that defendant serve plaintiff with a copy of this Order with Notice of Entry within thirty (30) days hereof.

This constitutes this Court's Decision and Order.

Dated: August 21, 2018

__________________

FIDEL E. GOMEZ, JCC