Cherry v. Duke ( 2015 )

Cherry v Duke (2015 NY Slip Op 08799)

Cherry v Duke

2015 NY Slip Op 08799

Decided on December 2, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.

2014-10456
(Index No. 20232/13)

[*1]Arnold Cherry, respondent,

v

Paul O. Duke, etc., et al., appellants, et al., defendants.

Leonard W. Stewart, Brooklyn, N.Y., for appellants.

Jeffrey Benjamin, Forest Hills, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the defendants Paul O. Duke and Adib Z. Ghattas, each individually and doing business as Duke & Ghattas Associates, LLC, also known as Ghattas Engineering, PLLC, also known as Ghattas Corporation, appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 11, 2014, which denied their pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On a CPLR 3211(a) motion to dismiss, "affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., 40 NY2d 633, 635; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591).

Accepting as true the facts pleaded in the complaint, as amplified by the plaintiff's affidavit, and according the plaintiff "the benefit of every possible favorable inference" (Leon v Martinez, 84 NY2d 83, 87), we find that the Supreme Court properly denied the appellants' pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

DILLON, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court