Alleyne v. Rutland Dev. Grp., Inc.

213 A.D.3d 887

182 N.Y.S.3d 661 (Mem)

Maria ALLEYNE, appellant,

v.RUTLAND DEVELOPMENT GROUP, INC., defendant,Golden Bridge, LLC, etc., respondent.

2019–13512

Index No. 505513/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 20, 2022

February 22, 2023

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.

Ganfer Shore Leeds & Zauderer LLP, New York, NY (Mark A. Berman, Dawn M. Wilson, and Jason Ganfer of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to set aside a deed and to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 16, 2019. The order granted the motion of the defendant Golden Bridge, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Golden Bridge, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it is denied.

On February 3, 2004, the plaintiff acquired title to real property located in Brooklyn. In 2017, the property was transferred to the defendant Rutland Development Group, Inc. (hereinafter Rutland), by the deed that is the subject of this action. Rutland granted the defendant Golden Bridge, LLC (hereinafter Golden Bridge), a mortgage on the property in exchange for the sum of $625,000.

On March 13, 2019, the plaintiff commenced this action, inter alia, to set aside the deed transferring the property to Rutland, for a declaration that the deed was void, and to cancel and discharge of record the mortgage on the property. The plaintiff alleged that her signature had been forged on the deed to Rutland, that she did not receive any consideration for the transfer of the property, and that she did not know and had never negotiated with either defendant.

On June 28, 2019, Golden Bridge moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it. By order dated October 16, 2019, the Supreme Court granted the motion. The plaintiff appeals, and we reverse.

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70 ; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). 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 (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes [a] 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, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ).

Here, in support of its motion, Golden Bridge submitted, among other things, a notary's certificate of acknowledgment attesting that the plaintiff had...