PETER F. GAITO ARCHITECTURE, LLC v. SIMONE DEVELOPMENT CORP.


46 A.D.3d 530 (2007)

846 N.Y.S.2d 368

PETER F. GAITO ARCHITECTURE, LLC, Appellant, v. SIMONE DEVELOPMENT CORP., Respondent.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 4, 2007.


Ordered that the order is affirmed insofar as appealed from, with costs.

In assessing a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), where evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one (see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; Steiner v Lazzaro & Gregory, 271 A.D.2d 596 [2000]; Meyer v Guinta, 262 A.D.2d 463, 464 [1999]). "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" (Palazzolo v Herrick, Feinstein, LLP, 298 A.D.2d 372 [2002]). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v Sterling Doubleday Enters., L.P., 19 A.D.3d 660, 661 [2005]).

In this case, the defendant adduced an unsigned draft agreement which had been the subject of negotiations between the parties. This unsigned draft agreement disproved the plaintiff's allegation that the defendant had verbally concurred with the terms of a preliminary "memorandum of understanding" which the plaintiff had sent to the defendant by e-mail. Under the circumstances, the parties evinced their intent not to be bound until the execution of a formal contract, and no enforceable obligation arose (see Pelham Commons Joint Venture v Village of Pelham, 308 A.D.2d 520, 521 [2003]). Accordingly, the Supreme Court properly granted those branches of the defendant's motion which were to dismiss the first, second, and third causes of action pursuant to CPLR 3211 (a) (7).


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