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THE PRE-ANSWER MOTION TO DISMISS CERTAIN CAUSES OF ACTION BASED UPON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED; THE CAUSES OF ACTION WERE PRECLUDED BY CONTRACT PROVISIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action should have been dismissed based upon documentary evidence, I.e., the purchase agreement and warranty. The plaintiff Board of Managers sued the sponsor and developer of defendant condominium alleging defective construction in common areas:

“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” … . “‘A motion to dismiss a complaint pursuant to CPR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law'” … . “On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “[T]he criterion is whether the proponent of [a] pleading has a cause of action, not whether he [or she] has stated one” … .

… [T]he defendants submitted, among other things, a limited warranty that had been incorporated into the purchase agreements between the sponsor and unit owners, which expressly stated, “[t]he [s]ponsor’s [l]imited [w]arranty excludes all consequential, incidental, special damages and indirect damages.” This documentary evidence conclusively established a defense to so much of that cause of action as sought consequential damages as a matter of law … .

… [D]efendants’ motion … to dismiss the … causes of action, sounding in unjust enrichment, breach of implied housing merchant warranty, and negligence [should have been granted}. … [T]he defendants conclusively established that these causes of action are precluded by the purchase agreement and limited warranty … . Board of Mgrs. of the 37, 39 Madison St. Condominium v 31 Madison Dev., LLC, 2024 NY Slip Op 04451, Second Dept 9-18-24

Practice Point: Here the pre-answer motion to dismiss based on documentary evidence should have been granted. The relevant causes of action were precluded by the terms of a purchase agreement and warranty.

 

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