motion to dismiss claim in New York

2025This Court agrees. [FN1] On a motion to dismiss a claim pursuant to CPLR 3211(a)(7), a court must afford the pleading a liberal construction by accepting the facts alleged as true, according the pleading "the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Carlson v American Intl.

2024On a Motion to dismiss a claim pursuant to CPLR 3211(a)(7), the court is required to accept the facts as alleged in the claim as true, accord claimants the benefit of every possible favorable inference, and determine only whether the facts as alleged fit with any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87 [1994]; Gioeli v Vlachos , 89 AD3d 984 [2d Dept 2011]).

2023Since a cognizable cause of action for breach of contract can be discerned from the factual allegations of the complaint, the motion to dismiss that claim [*2]must be denied ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

2023Since a cognizable cause of action for breach of contract can be discerned from the factual allegations of the complaint, the motion to dismiss that claim [*2]must be denied ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

2010If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2008If there is any doubt as to the availability of a defense, it should not be dismissed (see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2026Butler v. Catinella, 58 A.D.3d 145, 148 (2d Dept. 2008).

2023As with a motion to dismiss a complaint, all factual assertions in the pleadings are accepted as true and "if there is any doubt as to the availability of a defense, it should not be dismissed" ( id .; see also Butler v Catinella , 58 AD3d 145, 148 [2d Dept 2008]).

2025Fund Corp. v Hendrick , 90 AD3d 541, 542 [1st Dept 2011] ["In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed"]).

2025Fund Corp. v Hendrick , 90 AD3d 541, 542 [1st Dept 2011] ["In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed"]).

2025Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss a defense or defenses under the statute, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed." ( Staropoli v Agrelopo, LLC , 136 AD3d 791, 792 [2d Dept 2016]).

2025Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In reviewing a motion to dismiss a defense or defenses under the statute, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed." ( Staropoli v Agrelopo, LLC , 136 AD3d 791, 792 [2d Dept 2016]).

2024On a motion to dismiss a claim, we afford the pleading a liberal construction and accept the facts alleged as true, according the claimant the benefit of every possible favorable inference ( see Garofolo v State of New York , 80 AD3d 858, 860 [3d Dept 2011]; Trump on the Ocean, LLC v State of New York , 79 AD3d 1325, 1326 [3d Dept 2010], lv dismissed & denied 17 NY3d 770 [2011]).

2024On a motion to dismiss a claim, we afford the pleading a liberal construction and accept the facts alleged as true, according the claimant the benefit of every possible favorable inference ( see Garofolo v State of New York , 80 AD3d 858, 860 [3d Dept 2011]; Trump on the Ocean, LLC v State of New York , 79 AD3d 1325, 1326 [3d Dept 2010], lv dismissed & denied 17 NY3d 770 [2011]).

2024On a motion to dismiss a claim, we afford the pleading a liberal construction and accept the facts alleged as true, according the claimant the benefit of every possible favorable inference ( see Garofolo v State of New York , 80 AD3d 858, 860 [3d Dept 2011]; Trump on the Ocean, LLC v State of New York , 79 AD3d 1325, 1326 [3d Dept 2010], lv dismissed & denied 17 NY3d 770 [2011]).

2024On a motion to dismiss a claim, we afford the pleading a liberal construction and accept the facts alleged as true, according the claimant the benefit of every possible favorable inference ( see Garofolo v State of New York , 80 AD3d 858, 860 [3d Dept 2011]; Trump on the Ocean, LLC v State of New York , 79 AD3d 1325, 1326 [3d Dept 2010], lv dismissed & denied 17 NY3d 770 [2011]).

2024A cause of action for negligence requires proof that defendant owed the claimant a legally recognized duty, that "defendant breached that duty and that such breach was a proximate cause of an injury suffered by the [claimant]" ( Easterbrooks v Schenectady County , 218 AD3d 969, 970 [3d Dept 2023]).

2024A cause of action for negligence requires proof that defendant owed the claimant a legally recognized duty, that "defendant breached that duty and that such breach was a proximate cause of an injury suffered by the [claimant]" ( Easterbrooks v Schenectady County , 218 AD3d 969, 970 [3d Dept 2023]).

2016In deciding “a motion to dismiss a claim for failure to state a cause of action, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Bailey v Chernoff, 45 AD3d 1113, 1116 [2007] [internal quotation marks and citations omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Haire v Bonelli, 57 AD3d 1354, 1356 [2008]).

2010We affirm. “[W]hen ruling on a motion to dismiss a claim for failure to state a cause of action, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Bailey v Chernoff, 45 AD3d 1113, 1116 [2007] [internal quotation marks and citation omit ted]).

2013We agree, however, with defendants’ argument that the motion to dismiss the breach of contract action against Realty was properly granted as Realty was not a party to either the 2005 contract of sale or the 2009 agreement (see Birch v McGhee, 79 AD3d 1296,1297 [2010]; Won’s Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162 [1991]; see also Pacific Carlton Dev.

2013We agree, however, with defendants’ argument that the motion to dismiss the breach of contract action against Realty was properly granted as Realty was not a party to either the 2005 contract of sale or the 2009 agreement (see Birch v McGhee, 79 AD3d 1296,1297 [2010]; Won’s Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162 [1991]; see also Pacific Carlton Dev.

2013As this action was commenced less than six years later, in January 2012, the cause of action for breach of contract is timely and the motion to dismiss that claim against Healthcare was properly denied (see CPLR 213 [2]; Glynos v Dorizas, 106 AD3d 480, 481 [2013]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2013], lv dismissed 21 NY3d 1024 [2013]).

2013As this action was commenced less than six years later, in January 2012, the cause of action for breach of contract is timely and the motion to dismiss that claim against Healthcare was properly denied (see CPLR 213 [2]; Glynos v Dorizas, 106 AD3d 480, 481 [2013]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2013], lv dismissed 21 NY3d 1024 [2013]).

2013As this action was commenced less than six years later, in January 2012, the cause of action for breach of contract is timely and the motion to dismiss that claim against Healthcare was properly denied (see CPLR 213 [2]; Glynos v Dorizas, 106 AD3d 480, 481 [2013]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2013], lv dismissed 21 NY3d 1024 [2013]).

2013As this action was commenced less than six years later, in January 2012, the cause of action for breach of contract is timely and the motion to dismiss that claim against Healthcare was properly denied (see CPLR 213 [2]; Glynos v Dorizas, 106 AD3d 480, 481 [2013]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2013], lv dismissed 21 NY3d 1024 [2013]).

2013We agree, however, with defendants’ argument that the motion to dismiss the breach of contract action against Realty was properly granted as Realty was not a party to either the 2005 contract of sale or the 2009 agreement (see Birch v McGhee, 79 AD3d 1296,1297 [2010]; Won’s Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162 [1991]; see also Pacific Carlton Dev.

2013We agree, however, with defendants’ argument that the motion to dismiss the breach of contract action against Realty was properly granted as Realty was not a party to either the 2005 contract of sale or the 2009 agreement (see Birch v McGhee, 79 AD3d 1296,1297 [2010]; Won’s Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162 [1991]; see also Pacific Carlton Dev.

2010If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2008If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; see Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]).

2024"In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" {Warwick v Cruz, 270 AD2d 255 [2d Dept 2000]).

2011In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (Warwick v Cruz, 270 AD2d 255 [2000]).

2014We believe this rule strikes the appropriate balance between a plaintiffs right to recover in tort for statements that defame by implication and a defendant’s First Amendment protection for publishing substantially truthful statements (see Armstrong, 85 NY2d at 381 ).

2009On a motion to dismiss a claim for libel on the ground that the offending statement is not defamatory, the court must determine “whether the contested statements are reasonably susceptible of a defamatory connotation” (Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]; see James v Gannett Co., 40 NY2d 415, 419 [1976]).

2025Ctr., 157 AD3d 549 , 550 [l51 Dept 2018] ["Plaintiffs failure to oppose so much of the motion as sought dismissal of the lack of informed consent claim, constituted an abandonment of the claim"]; Saidin v Negron, 136 AD3d 458 , 459, [151 Dept 2016] ["Plaintiff abandoned his claim against the individual police officer by failing to oppose that part of the motion to dismiss the claim as against him"]; see also Gary v Flair Beverage Corp., 60 AD3d 413,413 [l51 Dept 2009]).

2024First, Pembrooke and Rael did not submit opposition to the motion, and therefore their cross-claims against the Sanders must be dismissed (Saidin v Negron, 136 AD3d 458, 458 [1st Dept 2016] [holding that “[p]laintiff abandoned his claim…by failing to oppose that part of the motion to dismiss the claim as against him”]).

2025Holdings, LLC v Pinkesz , 198 AD3d 693 , 697 (2d Dept 2021) (holding that the Supreme Court "properly denied dismissal of [defendant's] cross claim alleging breach of contract . . . which was sufficiently pleaded"); Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc. , 153 AD3d 768, 770-771 (2d Dept 2017) (stating that the Supreme Court erred in dismissing a breach of contract claim pursuant to CPLR § 3211[a][7] where the allegations "were sufficient to state a cause of action to recover damages for breach of contract"); Russo v Rozenholc , 130 AD3d 492, 495 (1st Dept 2015)

2025Plaintiff’s allegations that Bernstein was the sole owner of BEP, directed plaintiff’s work, and fired plaintiff are sufficient to satisfy the “economic reality” test at this juncture (see Harris v Structuretech New York, Inc., 191 AD3d 470 [1st Dept 2021]; see also Bonito v Avalon Partners, Inc., 106 AD3d 625, 626 [1st Dept 2013]).

2025However, a motion to dismiss the seventh and eighth causes of action, which were not in the original complaint, would not be barred by CPLR 3211(e) ( see Barbarito v Zahavi, 107 AD3d 416, 420 [1st Dept 2013]).