WELL v. RAMBAM

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

Don WELL, Respondent, v. Yeshiva RAMBAM, et al., Appellants, et al., Defendant.

Decided: December 23, 2002

MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS and BARRY A. COZIER, JJ. Israel Goldberg, PLLC, Brooklyn, N.Y., for appellants. Marc W. Garbar, P.C., New York, N.Y., for respondent.

In an action to recover damages for breach of contract, the defendants Yeshiva Rambam, Isaac Moinester, Alex Rovt, Richard Bernstein, Alex Gross, Imre Lefkovitz, Eli Cameo, Isidore Zaremba, Jeshurin Allen, Stacy Rosen, Irwin Weintraub, Garry Konner, Joel Zwibel, Harold Braunstein, Adam Sandler, Ellen Nakash, and Jeffrey Wallach appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated July 23, 2001, as denied those branches of their motion which were to dismiss the sixth through twelfth causes of action insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were to dismiss the sixth through twelfth causes of action insofar as asserted against the appellants are granted, and those causes of action are dismissed insofar as asserted against the appellants.

 On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;  LoPinto v. J.W. Mays, Inc., 170 A.D.2d 582, 566 N.Y.S.2d 357;  Cohn v. Rothman-Goodman Mgt. Corp., 155 A.D.2d 579, 547 N.Y.S.2d 881).  “Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).   A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970).   However, “unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” dismissal may not be predicated on such evidentiary material (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 162, 654 N.Y.S.2d 791,cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316).   A complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (see Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra).

 The sixth cause of action must be dismissed because it alleged the breach of a contract provision that amounted to an agreement to negotiate and, as such, is unenforceable (see Del Castillo v. Bayley Seton Hosp., 232 A.D.2d 602, 649 N.Y.S.2d 41;  Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 110, 436 N.Y.S.2d 247, 417 N.E.2d 541).   Since the individual defendants named in the seventh and eighth causes of action are entitled to the qualified immunity afforded by Not-For-Profit Corporation Law § 720-a, and there is no reasonable probability that the plaintiff could prove gross negligence or intentional harm, those causes of action should be dismissed (see CPLR 3211 [a] [11];  Durante Bros. Constr. Corp. v. College Point Sports Assn., 207 A.D.2d 379, 380, 615 N.Y.S.2d 455).

 A necessary element of a cause of action alleging negligent supervision or negligent retention is that “the employer knew or should have known of the employee's propensity for the conduct which caused the injury” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra at 161, 654 N.Y.S.2d 791).   The ninth, tenth, and eleventh causes of action, based on negligent supervision and negligent retention, contain “ ‘little more than bare legal conclusions' or factual claims that are contradicted by evidence” (Manno v. Mione, 249 A.D.2d 372, 670 N.Y.S.2d 368, quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra at 161, 654 N.Y.S.2d 791).   Thus, those causes of action should have been dismissed.   Finally, the twelfth cause of action, sounding in defamation, should have been dismissed because the plaintiff failed to set forth the particular defamatory words (see CPLR 3016 [a];  Poplawski v. Metropolitan Prop. & Cas. Ins. Co., 262 A.D.2d 543, 544, 692 N.Y.S.2d 438).

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