TROCCOLI v. ZARABI

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the cause of action alleging fraudulent inducement, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

"In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded a liberal construction," and the plaintiff is accorded the benefit of every favorable inference ( Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). A motion to dismiss pursuant to CPLR 3211 (a) (1) on the ground of a defense founded on documentary evidence may appropriately be granted "only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( id.; see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman Dicker, LLP, 38 AD3d 34, 37-38; Williams v Williams, 36 AD3d 693, 695).

The documentary evidence submitted by the defendant did not utterly refute the plaintiff's allegations, and thus did not conclusively establish a defense to that cause of action as a matter of law. Accordingly, the Supreme Court erred in granting that branch of the defendant's motion which was to dismiss the cause of action alleging fraudulent inducement.

The plaintiff's remaining contentions are without merit