Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Washington Mutual Bank FA which was, in effect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint insofar as asserted against it is denied.
The plaintiff alleges that the defendant Geoffrey S. Goldman fraudulently induced her to convey her property in foreclosure to him by promising to pay off her mortgage and apply the remainder of the purchase price to the purchase of another
On a motion to dismiss a complaint, the pleading is to be afforded a liberal construction. The court is to determine only whether the facts as alleged fit within any cognizable legal theory. The facts pleaded are presumed to be true and are to be accorded every favorable inference (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300, 303 ; Salvatore v Kumar, 45 A.D.3d 560, 563 ; Mayer v Sanders, 264 A.D.2d 827, 828 ). Further, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (McGuire v Sterling Doubleday Enters., L.P., 19 A.D.3d 660, 661 , quoting Leon v Martinez, 84 N.Y.2d 83, 88 ; see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635 ). "[W]here 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" (Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 A.D.3d 530, 530 ; see Meyer v Guinta, 262 A.D.2d 463, 464 ).
A motion to dismiss based on documentary evidence may appropriately be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 ; see Leon v Martinez, 84 NY2d at 88; Mazur Bros. Realty, LLC v State of New York, 59 A.D.3d 401, 402 ).
The amended complaint alleges that Washington Mutual was not a bona fide encumbrancer for value. We agree with the plaintiff that this allegation was not disproven by the documentary
Further, Washington Mutual's contention that the plaintiff failed to satisfy a condition precedent to commencement of the action is without merit. Statutory rescission pursuant to Real Property Law § 265-a (8) is not a condition precedent to the commencement of an action pursuant to Real Property Law § 265-a (9). These subdivisions provide separate remedies, and subdivision (9) does not state that the cause of action created by that subdivision is contingent upon complying with the rescission procedures outlined in subdivision (8). "A court cannot amend a statute by adding words that are not there" (American Tr. Ins. Co. v Sartor, 3 N.Y.3d 71, 76 ). Moreover, the Home Equity Theft Prevention Act is a remedial statute, designed to stem an anticipated rise in so-called "mortgage rescue" schemes, and its provisions should be liberally construed in favor of equity sellers (see Matter of DaimlerChrysler Corp. v Spitzer, 7 N.Y.3d 653, 660 ; Wells Fargo Bank, NA v Edsall, 22 Misc.3d 1113[A], 2009 NY Slip Op 50112[U], *4 ).