FISHBERGER v. VOSS


51 A.D.3d 627 (2008)

858 N.Y.S.2d 257

STEVEN B. FISHBERGER et al., Appellants, v. CHRISTIAN H. VOSS et al., Respondents.

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

Decided May 6, 2008.


Ordered that the appeal from the order entered December 12, 2007 is dismissed, as no appeal lies from an order denying a motion for leave to reargue; and it is further,

Ordered that the order entered April 9, 2007 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant Houlihan Lawrence, Inc.

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). However, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff "has a cause of action, not whether [the plaintiff] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 274-275 [1977]).

In support of the fifth cause of action in the amended complaint, the plaintiffs alleged, inter alia, that a particular condition affecting certain property they contracted to purchase "was not reasonably discoverable by" them. However, certain evidentiary material submitted on the motion to dismiss demonstrated, without significant dispute, that the condition could, in fact, have been discovered by the plaintiffs through the exercise of reasonable diligence. Under these circumstances, the Supreme Court properly granted that branch of the motion which was to dismiss the fifth cause of action (see Illions v Allstate Ins. Co., 2 A.D.3d 686, 686-687 [2003]; Columbo v Chase Manhattan Automotive Fin. Corp., 297 A.D.2d 327, 328 [2002]).

The plaintiffs' remaining contentions are without merit.


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