Sta-Brite Servs., Inc. v. Sutton, 17 A.D.3d 570 (N.Y. App. Div. 2005). · Go Syfert
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Sta-Brite Servs., Inc. v. Sutton, 17 A.D.3d 570 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
15 citation events (15 in the last 25 years) across 1 distinct court.
Strongest positive: Christ the Rock World Restoration Church International, Inc. v. Evangelical Christian Credit Union (nyappdiv, 2017-09-13)
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discussed Cited as authority (rule) Christ the Rock World Restoration Church International, Inc. v. Evangelical Christian Credit Union
N.Y. App. Div. · 2017 · confidence medium
As the plaintiffs correctly contend, although Malik’s cross motion was made pursuant to CPLR 3211 (a), the Supreme Court treated it as one for summary judgment without providing the parties with any notice that it intended to do so (see CPLR 3211 [c]; Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570, 570-571 [2005]).
cited Cited as authority (rule) Wells Fargo Bank, N.A. v. Robinson
N.Y. App. Div. · 2012 · confidence medium
Owners Corp., 18 AD3d 857, 857-858 [2005]; Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570, 570-571 [2005]; Ratner v Steinberg, 259 AD2d 744 [1999]).
discussed Cited as authority (rule) 1911 Richmond Avenue Associates v. G.L.G. Capital
N.Y. App. Div. · 2009 · confidence medium
The complaint also could not be dismissed pursuant to CPLR 3211 (a) (7), as the evidentiary material submitted by Turner did not demonstrate that the material fact alleged by the plaintiff in the complaint that GLG was acting as some type of representative of Turner was not true, or that there was no significant dispute regarding it (see Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570, 571 [2005]).
discussed Cited as authority (rule) Meltzer v. Meltzer
N.Y. App. Div. · 2007 · confidence medium
Thus, the Supreme Court correctly denied that branch of her motion which was to dismiss that cause of action (see Quesada v Global Land, Inc., 35 AD3d 575, 576 [2006]; Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570, 571 [2005]; Allstate Ins.
discussed Cited "see" Pechko v. Gendelman
N.Y. App. Div. · 2005 · signal: see · confidence high
However, where, as here, evidentiary material has been submitted on a motion to dismiss, it may be considered in as sessing the viability of a complaint, although the complaint should not be dismissed unless the defendant demonstrates that a material fact alleged by the plaintiff “is not a fact at all” and that “no significant dispute exists regarding it” (Yew Prospect v Szulman, 305 AD2d 588, 589 [2003], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Sta-Brite Seros., Inc. v Sutton, 17 AD3d 570 [2005]).
Retrieving the full opinion text from the archive…
Sta-Brite Services, Inc.
v.
Jack Sutton
Appellate Division of the Supreme Court of the State of New York.
Apr 18, 2005.
17 A.D.3d 570
Cited by 11 opinions  |  Published

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated April 6, 2004, which converted the defendants’ motion to dismiss the complaint pursuant to CFLR 3211 (a) (1), (3), and (7) into one for summary judgment, and granted the motion.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff commenced this action to recover damages for breach of contract. The defendants moved to dismiss the complaint pursuant to CFLR 3211 (a) (1), (3), and (7) contending, inter alia, that the plaintiff was not the real party in interest.

Although the defendants’ motion was made pursuant to CPLR 3211, the Supreme Court treated it as one for summary judgment. There is no indication in the record that the Supreme Court provided “adequate notice to the parties” (CPLR 3211 [c]), that it was converting the defendants’ motion into a mo[*571] tion for summary judgment (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Further, the record does not establish that either party deliberately charted a summary judgment course (see Williams v New York City Hous. Auth., 238 AD2d 413, 414 [1997]). Thus, this Court will apply the standards applicable to a motion to dismiss pursuant to CPLR 3211.

“Where, as here, evidentiary material is submitted on a motion to dismiss pursuant to CPLR 3211 (a) (7), it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates that a material fact alleged by the plaintiff ‘is not a fact at all’ and that ‘no significant dispute exists regarding it,’ the complaint should not be dismissed” (Yew Prospect v Szulman, 305 AD2d 588, 589 [2003], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Here, the defendants’ evidentiary submissions failed to show that a material fact alleged in the plaintiffs complaint was “not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, supra at 275; see Allstate Ins. Co. v Raguzin, 12 AD3d 468, 469 [2004]). Moreover, to the extent that the defendants’ motion is based upon documentary evidence, the evidence submitted did not definitively contradict the material allegations of the complaint and conclusively dispose of the plaintiffs claim (see Allstate Ins. Co. v Raguzin, supra).

Further, the defendants failed to demonstrate that the plaintiff did not have the legal capacity to sue (see CPLR 3211 [a] [3]). The defendants did not establish a sufficient foundation for the admissibility, as a business record, of an “online information” document which they submitted to show that the plaintiff was not authorized to do business in the State of New York at the time that the subject contract was entered into (see CPLR 4518 [a]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531, 532 [1997]; see generally People v Kennedy, 68 NY2d 569, 578-580 [1986]).

Consequently, the defendants’ motion should have been denied. H. Miller, J.P., Cozier, Rivera and Skelos, JJ., concur.