ASGAHAR v. TRINGALI REALTY INC (2005)

In an action, inter alia, to recover damages for breach of contract, tortious interference with contract, and violation of the Civil Rights Law, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Austin, J.), dated January 21, 2004, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and CPLR 3211(a) (7).

ORDERED that the order is affirmed, with costs.

 The Supreme Court incorrectly determined that the complaint in this action is barred by the doctrine of res judicata.  “Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply” (Sclafani v. Story Book Homes, 294 A.D.2d 559, 559-560, 743 N.Y.S.2d 283).   The complaint in a prior related action was dismissed for failure to state a cause of action upon which relief could be granted, with leave to replead.   Therefore, the dismissal was not on the merits, and res judicata does not apply in the instant case (see Maitland v. Trojan Elec. & Mach. Co., 65 N.Y.2d 614, 615, 491 N.Y.S.2d 147, 480 N.E.2d 736).

However, the Supreme Court properly found that the instant complaint failed to state a cause of action upon which relief could be granted.   In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the allegations in the complaint should be accepted as true (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511).   Such a motion should be granted only where, viewing the allegations as true, the plaintiff cannot establish a cause of action (see Cayuga Partners v. 150 Grand, 305 A.D.2d 527, 759 N.Y.S.2d 347).

 However, “[i]t is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action.   When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one” (Meyer v. Guinta, 262 A.D.2d 463, 464, 692 N.Y.S.2d 159;  see Ahmed v. Getty Petroleum Mktg., 12 A.D.3d 385, 385-386, 786 N.Y.S.2d 188).

 Here, the Supreme Court properly found that the evidence submitted demonstrated that there was no clear and unambiguous promise upon which the plaintiffs could have reasonably relied to sustain a cause of action for breach of contract on a theory of promissory estoppel (see generally Gurreri v. Associates Ins. Co., 248 A.D.2d 356, 357, 669 N.Y.S.2d 629;  see also Caridi v. Markey, 148 A.D.2d 653, 539 N.Y.S.2d 404).   The plaintiffs also failed to allege the existence of a contract between themselves and a third party to sustain a cause of action for tortious interference with a contract (see generally Foster v. Churchill, 87 N.Y.2d 744, 749-750, 642 N.Y.S.2d 583, 665 N.E.2d 153;  see also Commodari v. Long Is. Univ., 295 A.D.2d 302, 742 N.Y.S.2d 905).

 Moreover, the plaintiffs' bare legal conclusion that the defendants violated unspecified civil rights laws was clearly insufficient to sustain a cause of action (see generally Meyer, supra;  see also Kane v. Orange County Publ., 232 A.D.2d 526, 527, 649 N.Y.S.2d 23).