Breytman v. Olinville Realty, LLC, 54 A.D.3d 703 (N.Y. App. Div. 2008). · Go Syfert
Breytman v. Olinville Realty, LLC, 54 A.D.3d 703 (N.Y. App. Div. 2008). Cases Citing This Book View Copy Cite
156 citation events (156 in the last 25 years) across 5 distinct courts.
Strongest positive: Garcia v. Best Professional Home Care Agency Inc. (nysupctkings, 2024-12-17)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Garcia v. Best Professional Home Care Agency Inc.
N.Y. Sup. Kings · 2024 · confidence medium
NO. 200 RECEIVED NYSCEF: 12/20/2024 whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]). "[T]he issue on a motion pursuant to CPLR 3211(a)(7) is limited to ascertaining whether the pleading states any cause of action, and not whether there is evidentiary support for the complaint" (LoPinto v J w: Mays, Inc., 170 AD2d 582,583 [2d Dept 1991]).
discussed Cited as authority (rule) Bondarevsky v. Shamis Chiropractic P.C.
N.Y. Sup. Kings · 2024 · confidence medium
Ctr. of Queens , 34 AD3d 650, 651 [2d Dept 2006].) As the Second Department subsequently articulated the indulgent approach adopted by New York vis-à-vis complaints in the CPLR 3211 (a) (7) arena: "On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty,…
discussed Cited as authority (rule) Dziekonski v. Uber Tech., Inc.
N.Y. Sup. Kings · 2024 · confidence medium
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Gadman v. Strumpf
N.Y. App. Term. · 2021 · confidence medium
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the pleading must be liberally construed, and all of the facts alleged therein must be accepted as true and accorded the benefit of every possible favorable inference to determine whether they fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Tooma v Grossbarth , 121 AD3d 1093, 1095 [2014]; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Miller v. National Prop. Mgt. Assoc., Inc.
N.Y. App. Div. · 2021 · confidence medium
Supreme Court, however, properly denied defendants' motion insofar as it sought to dismiss the breach of contract claim against DaveBill on the ground that plaintiff failed to identify the portion of the lease agreement that was allegedly breached; liberally construed in plaintiff's favor, the complaint alleges that the implied warranty of habitability was breached, and defendants make no argument that such a theory fails to state a cause of action against DaveBill under these circumstances ( cf. Breytman v Olinville Realty, LLC , 54 AD3d 703, 704 [2d Dept 2008], lv dismissed 12 NY3d 878 [2009…
discussed Cited as authority (rule) Burgos v. New York Presbyterian Hospital
N.Y. App. Div. · 2017 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Antoine v. Kalandrishvili
N.Y. App. Div. · 2017 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Aviaev v. Nissan Infiniti LT
N.Y. App. Div. · 2017 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit *808 of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Jackson v. Bank of America, N.A.
N.Y. App. Div. · 2017 · confidence medium
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be *820 true, accord the plaintiff or petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87 ; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Blake v. City of New York
N.Y. App. Div. · 2017 · confidence medium
When dismissal is sought pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Scialdone v. DeRosa
N.Y. App. Div. · 2017 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Bibbo v Arvanitakis, 145 AD3d 657, 659 [2016]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Bibbo v. Arvanitakis
N.Y. App. Div. · 2016 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588-589 [2014]).
discussed Cited as authority (rule) Heeran v. Long Is. Power Auth. (LIPA)
N.Y. App. Div. · 2016 · confidence medium
Hurricane Sandy Litig., 134 AD3d 1119, 1120 [2015]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122 , 125 [2009], affd 16 NY3d 775 [2011]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Hallwood v. Incorporated Vil. of Old Westbury
N.Y. App. Div. · 2015 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as al *572 leged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Sinagra v. City of New York
N.Y. App. Div. · 2015 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Clarke v. Laidlaw Transit, Inc.
N.Y. App. Div. · 2015 · confidence medium
With respect to that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (7), on a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d at 12…
discussed Cited as authority (rule) Kamchi v. Weissman
N.Y. App. Div. · 2014 · confidence medium
Corp., 114 AD3d 655 , 656 [2014]; Young v Brown, 113 AD3d 761, 761 [2014]; Breytman v Olin-ville Realty, LLC, 54 AD3d 703, 703-704 [2008]), it sufficiently alleged that Bradin made false statements of fact with common-law malice so as to overcome the common interest qualified privilege.
cited Cited as authority (rule) JJM Sunrise Automotive, LLC v. Volkswagen Group of America, Inc.
N.Y. Sup. Ct. · 2014 · confidence medium
High Sch., 117 AD3d 1005 , 1006 [2d Dept 2014]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2d Dept 2008]; Morris v Morris, 306 AD2d 449 [2d Dept 2003]).
discussed Cited as authority (rule) JP Morgan Chase Bank, N.A. v. Hall
N.Y. App. Div. · 2014 · confidence medium
Although there was no contract between Drummond and New York Land, affording the pleadings a liberal construction and accepting all facts alleged as true (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]), the third-party complaint supports Drummond’s contention that the relationship between these two parties was so close as to approach privity (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536 , 551 [1985]; Reliance Ins.
cited Cited as authority (rule) Coastal Purchasing Group, LLC v. JPMCC 2005-CIBC Collins Lodging, LLC
N.Y. App. Div. · 2014 · confidence medium
Contr., LLC, 107 AD3d 664 [2013]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Urias v. Daniel P. Buttafuoco & Associates, PLLC
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit *1342 of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
cited Cited as authority (rule) Siony v. Siunykalimi
N.Y. App. Div. · 2014 · confidence medium
Brokerage Corp., 90 AD3d 967, 967 [2011]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Matter of Saginario
N.Y. App. Div. · 2014 · confidence medium
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc. 108 AD3d 634, 636 [2013]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Canzona v. Atanasio
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Canzona v. Atanasio
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breyt man v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Canzona v. Atanasio
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breyt man v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Agai v. Liberty Mutual Agency Corp.
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breyt man v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Agai v. Liberty Mutual Agency Corp.
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breyt man v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Canzona v. Atanasio
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Lizjan, Inc. v. Sahn Ward Coschignano & Baker, PLLC
N.Y. App. Div. · 2014 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849 , 851 [2012]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Lizjan, Inc. v. Sahn Ward Coschignano & Baker, PLLC
N.Y. App. Div. · 2014 · confidence medium
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849 , 851 [2012]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Santana v. Leith
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Sacher v Beacon Assoc.
discussed Cited as authority (rule) Santana v. Leith
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Sacher v Beacon Assoc.
discussed Cited as authority (rule) Soodoo v. LC, LLC
N.Y. App. Div. · 2014 · confidence medium
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Soodoo v. LC, LLC
N.Y. App. Div. · 2014 · confidence medium
On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Goldberg v. Rosenberg
N.Y. App. Div. · 2014 · confidence medium
“However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2008]; see Morris v Morris, 306 AD2d 449, 451 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]).
cited Cited as authority (rule) Atlantic Capital Realty v. Cayuga Capital Management, LLC
N.Y. App. Div. · 2014 · confidence medium
Contr., LLC, 107 AD3d 664 [2013]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Goldberg v. Rosenberg
N.Y. App. Div. · 2014 · confidence medium
“However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2008]; see Morris v Morris, 306 AD2d 449, 451 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]).
cited Cited as authority (rule) Atlantic Capital Realty v. Cayuga Capital Management, LLC
N.Y. App. Div. · 2014 · confidence medium
Contr., LLC, 107 AD3d 664 [2013]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).
discussed Cited as authority (rule) Xia-Ping Wang v. Diamond Hill Realty, LLC
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss [a] complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d at 87 ).
discussed Cited as authority (rule) Xia-Ping Wang v. Diamond Hill Realty, LLC
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss [a] complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d at 87 ).
discussed Cited as authority (rule) Kalikow v. Shalik
N.Y. Sup. Ct. · 2014 · confidence medium
On the other hand, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference (see Morris v Morris, 306 AD2d 449 [2d Dept 2003]; Doria v Masucci, 230 AD2d 764, 765 [2d Dept 1996]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2d Dept 2008]).
discussed Cited as authority (rule) Greenfield v. Long Beach Imaging Holdings, LLC
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Greenfield v. Long Beach Imaging Holdings, LLC
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo
N.Y. App. Div. · 2014 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
discussed Cited as authority (rule) Goel v. Ramachandran
N.Y. App. Div. · 2013 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Goel v. Ramachandran
N.Y. App. Div. · 2013 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Sposato v. Paboojian
N.Y. App. Div. · 2013 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Sposato v. Paboojian
N.Y. App. Div. · 2013 · confidence medium
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Retrieving the full opinion text from the archive…
Alexander Breytman
v.
Olinville Realty, LLC
Appellate Division of the Supreme Court of the State of New York.
Sep 9, 2008.
54 A.D.3d 703
Cited by 307 opinions  |  Published

In an action, inter alia, to recover damages for personal injuries and breach of implied warranty of habitability, the plaintiff appeals (1), as limited by his brief, from stated portions of an order of the Supreme Court, Kings County (Ruditzky, J.), dated October 20, 2006, which, among other things, granted the defendants’ motion to dismiss the complaint pursuant to, inter alia, CPLR 3211 (a) (7), (2) from an order of same court (Held, J.), dated March 1, 2007, which, among other things, granted, in effect, the renewed motion of the defendants Olinville Realty, LLC, Olinville Realty Co., LLC, Olinville Realty, Weiner Realtors, Weiner Realty, LLC, Weiner Realty, Joel Weiner, Harry Hirsh, Donna Fabrizio, Effie Galato, “Forester,” Sadat Rugova, and Bronx Pinnacle, LLC, to dismiss the amended complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7), and (3) from an order of the same court (Held, J.), also dated March 1, 2007, which granted the motion of the defendants Rappaport, Hertz, Cherson and Rosenthal, P.C., and John Robalino to dismiss the amended complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7) and (8).

Ordered that the order dated October 20, 2006, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the first order dated March 1, 2007, is modified, on the law, by deleting the provision thereof granting that branch of the, in effect, renewed motion of the defendants Olinville Realty, LLC, Olinville Realty Co., LLC, Olinville Realty, Weiner Realtors, Weiner Realty, LLC, Weiner Realty, Joel Weiner, Harry Hirsh, Donna Fabrizio, Effie Calato, “Forester,” Sadat Rugova, and Bronx Pinnacle, LLC, which was to dismiss the cause of action in the amended complaint to recover damages for negligence causing personal injuries insofar as asserted against the defendant Olinville Realty, LLC, and substituting therefor a provision denying that branch of the, in effect, renewed motion; as so modified, the order is affirmed, without costs or disbursements; and it is further,

Ordered that the second order dated March 1, 2007, granting the motion of the defendants Rappaport, Hertz, Cherson and Rosenthal, PC., and John Robalino to dismiss the amended complaint insofar as asserted against them, is affirmed, without costs or disbursements.

On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as al[*704] leged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Asgahar v Tringali Realty, Inc., 18 AD3d 408 [2005]). However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference (see Morris v Morris, 306 AD2d 449, 451 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]). The Supreme Court was correct, in dismissing the plaintiff’s cause of action alleging breach of the implied warranty of habitability, asserted in the amended complaint, since the facts as alleged did not fit within any cognizable legal theory.

However, contrary to the Supreme Court’s determination, the amended complaint sufficiently alleged a cause of action against the defendant Olinville Realty, LLC, the plaintiffs landlord, to recover damages for personal injuries caused by that defendant’s negligence. The plaintiff alleged that on January 26, 2003, he suffered physical injuries when a portion of a wall in his apartment fell on him. When accepting all the facts as alleged in the amended complaint to be true and allowing the plaintiff the benefit of every possible inference, the facts as alleged fit within a cognizable legal theory.

The plaintiff’s remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo and Belen, JJ., concur.