KHOURY v. KHOURY

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Docket Number

No. 2009-07358.

Attorney(S)

Michael P. Berkley, P.C., Garden City, N.Y., for appellant. Thomas Weiss, P.C., New York, N.Y. (Kafi Harris of counsel), for respondents.

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Smart Summary

Factual and Procedural Background

This appeal arises from an action for replevin and related relief initiated by the plaintiff, Charles Khoury, against the defendants, including Agnes M. Khoury as Trustee of the Agnes M. Khoury Living Trust. The Supreme Court, Nassau County, initially granted the defendants' cross motion to dismiss the complaint pursuant to CPLR 3211(a)(7) in an order dated November 24, 2008. Upon reargument, the court adhered to this original determination in an order dated June 25, 2009. The plaintiff appeals from the portion of the June 25, 2009 order that upheld the dismissal of the complaint.

Legal Issues Presented

Whether the Supreme Court properly granted the defendants' cross motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
Whether the order made upon reargument was appealable.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561	Appealability of orders made upon reargument.	Supported the court’s conclusion that the June 25, 2009 order was appealable.
McNeil v Dixon, 9 AD3d 481, 482	Appealability of orders made upon reargument.	Reinforced the appealability of the order dated June 25, 2009.
McNamara v Rockland County Patrolmen's Benevolent Assn., 302 AD2d 435, 436	Appealability of reargument orders.	Further supported the appealability of the challenged order.
Guggenheimer v Ginzburg, 43 NY2d 268, 275	Standard for motion to dismiss under CPLR 3211(a)(7): facts pleaded must be accepted as true and construed favorably.	Guided the court’s analysis in determining whether the complaint stated a cause of action.
Leon v Martinez, 84 NY2d 83, 87-88	Standard of review for motions to dismiss for failure to state a cause of action.	Applied to affirm that the complaint’s allegations must be accepted as true at this stage.
Sokol v Leader, 74 AD3d 1180, 1180-1181	Standard for evaluating CPLR 3211(a)(7) dismissal motions and that ultimate ability to prove allegations is not considered.	Used to confirm that the plaintiff’s complaint must be evaluated on its face without regard to ultimate proof.
Gershon v Goldberg, 30 AD3d 372, 373	Standard for motion to dismiss under CPLR 3211(a)(7).	Supported the legal standard applied in denying the dismissal.
EBC I, Inc. v Goldman, Sachs Co., 5 NY3d 11, 19 (2005)	Clarification that the court does not assess the likelihood of success on the merits at the dismissal stage.	Emphasized that the plaintiff’s allegations must be accepted without weighing ultimate proof.
Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman Dicker, LLP, 38 AD3d 34, 38	Reiterates the standard for motion to dismiss under CPLR 3211(a)(7).	Reinforced the court’s approach to the motion to dismiss.
Hofferman v Simmons, 290 NY 449, 455 (1943)	Elements required to state a cause of action for replevin: ownership or lawful possession and unlawful withholding by defendant.	Applied to determine that the plaintiff adequately pleaded a cause of action for replevin.
Matter of Bolin v Nassau County Bd. of Coop. Educ. Servs., 52 AD3d 704, 707	Replevin requires allegation of ownership or lawful possession and wrongful withholding.	Supported the court’s conclusion that the complaint stated a valid cause of action.
Salatino v Salatino, 13 AD3d 512, 513	Replevin elements and pleading requirements.	Used to confirm the sufficiency of the plaintiff’s allegations.
Hoffman v Unterberg, 9 AD3d 386, 388	Replevin requires clear identification of property and unlawful withholding.	Applied to affirm that the plaintiff identified specific items and alleged refusal to return them.

Court's Reasoning and Analysis

The court analyzed the defendants' cross motion to dismiss under CPLR 3211(a)(7), which tests whether the complaint states a cause of action on its face. The court emphasized that all factual allegations in the complaint must be accepted as true and construed in the plaintiff's favor. The court rejected the defendants' contention that the order made upon reargument was not appealable, citing precedent confirming appealability in such contexts.

Applying the legal standard, the court found that the plaintiff sufficiently alleged ownership or lawful possession of specific personal property, some irreplaceable, located in a building controlled by the defendants. The complaint also alleged that the defendants unreasonably refused to return the property upon request. These allegations met the requirements to state a cognizable cause of action for replevin and related relief. The court therefore held that the dismissal of the complaint was improper and the defendants' cross motion should have been denied.

Holding and Implications

The court REVERSED the order dated June 25, 2009, insofar as appealed from, vacated the portion of the November 24, 2008 order granting the defendants' cross motion to dismiss pursuant to CPLR 3211(a)(7), and denied the defendants' cross motion.

The direct effect of this decision is to reinstate the plaintiff’s complaint, allowing the action for replevin and related relief to proceed. The court’s ruling does not establish new precedent but reaffirms established standards governing motions to dismiss and the pleading requirements for replevin claims.

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CHARLES KHOURY, Appellant, v. AGNES M. KHOURY, as Trustee of the AGNES M. KHOURY LIVING TRUST, et al., Respondents.

Ordered that the order dated June 25, 2009, is reversed insofar as appealed from, on the law, with costs, and, in effect, upon reargument, so much of the order entered November 24, 2008, as granted the defendants' cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) is vacated, and the defendants' cross motion is denied.

In the order appealed from, the Supreme Court, in effect, granted reargument and, upon reargument, adhered to its original determination. Therefore, contrary to the defendant's contention, the order dated June 25, 2009, made upon reargument, is appealable ( see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561; McNeil v Dixon, 9 AD3d 481, 482; McNamara v Rockland County Patrolmen's Benevolent Assn., 302 AD2d 435, 436).

Upon reargument, the defendants' cross motion to dismiss the complaint should have been denied. In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded must be presumed to be true and accorded every favorable inference, and the sole criterion is whether "from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275; see Leon v Martinez, 84 NY2d 83, 87-88; Sokol v Leader, 74 AD3d 1180, 1180-1181; Gershon v Goldberg, 30 AD3d 372, 373). "Whether [the] plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v Goldman, Sachs Co.,5 NY3d 11, 19 [2005]; see Sokol v Leader, 74 AD3d at 1181; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman Dicker, LLP, 38 AD3d 34, 38).

To state a cause of action for replevin, a plaintiff must allege that he or she owns specified property, or is lawfully entitled to possess it, and that the defendant has unlawfully withheld the property from the plaintiff ( see Hofferman v Simmons, 290 NY 449, 455 [1943]; Matter of Bolin v Nassau County Bd. of Coop. Educ. Servs., 52 AD3d 704, 707; Salatino v Salatino, 13 AD3d 512, 513; Hoffman v Unterberg, 9 AD3d 386, 388). In this case, the plaintiff clearly identified specific items of personal property that belonged to him, some of which were irreplaceable, and alleged that the items were located in a building owned and managed by the defendants. In addition, the plaintiff alleged that although he asked the defendants to return his property to him, the defendants unreasonably refused to do so. Thus, the plaintiff has pleaded a cognizable cause of action for replevin and related relief.