Reed v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 52076(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 1, 2012, deemed from a judgment of the same court entered March 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 2012 order granting defendant’s motion to dismiss the complaint for failure to state a cause of action, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied.

In this action to recover first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]). The complaint alleged that defendant had issued an insurance policy which covered plaintiff’s vehicle and provided for payment of no-fault benefits. The complaint set forth the number of the applicable policy and stated that plaintiff had timely notified defendant of the accident, but defendant had failed to pay the bills. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), arguing that the complaint was insufficient to state a claim of indebtedness, and plaintiff opposed the motion. By order entered March 1, 2012, the Civil Court granted defendant’s motion. Plaintiff’s appeal from the order is deemed to be from a judgment, which was subsequently entered, dismissing the complaint (see CPLR 5501 [c]).

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The allegations contained in the complaint should be accepted as true and the court must determine whether such facts fit any cognizable legal theory (see Morales v Copy Right, Inc., 28 AD3d 440 [2006]; Golden Gate Rehabilitation & Health Care Ctr., LLC v Giordano, 22 Misc 3d 136[A], 2009 NY Slip Op 50292[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Upon a review of the complaint in this case, we find that, contrary to the determination of the Civil Court, the complaint stated a cognizable cause of action and was sufficient to give defendant notice of the transactions intended to be proved.

Accordingly, the judgment is reversed, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 11, 2013