Pellarin v Moon Bay Dev. Corp.
2006 NY Slip Op 03563 [29 AD3d 553]
May 2, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 19, 2006

Niloofar Pellarin et al., Respondents,
Moon Bay Development Corp. et al., Appellants.

[*1]In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated November 12, 2004, as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and to cancel the notice of pendency.

Ordered that the order is affirmed insofar as appealed from, with costs.

In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Applying these principles to the instant case, the Supreme Court properly denied the defendants' motion, inter alia, to dismiss the complaint (see Jackal Holdings, LLC v JSS Holding Corp., 23 AD3d 435 [2005]; cf. Fast Track Funding Corp. v Perrone, 19 AD3d 362, 363 [2005]). The plaintiffs sufficiently stated a cause of action against the defendant John Chiarelli in his individual capacity to pierce the corporate veil (see McCoy & Assoc. Realty Corp. v D.J.F. Props., 194 AD2d 651 [1993]; People ex rel. Washburn v Hall & Co., 174 AD2d 562 [1991]), and against the defendants Fredrick P. Stern[*2]& Associates, P.C., Fredrick P. Stern, and Patricia A. Stern alleging misrepresentation and breach of their fiduciary duty (see Takayama v Schaefer, 240 AD2d 21, 25 [1998]; Grinblat v Taubenblat, 107 AD2d 735, 736 [1985]; see also Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). Contrary to the defendants' contention, the instant action was commenced within the 45-day period of limitations set forth in the subject contract because the plaintiffs provided notice of claim by a letter dated July 8, 2004 and commenced their action on July 12, 2004 (cf. Krohn v Felix Indus., 226 AD2d 506 [1996]). Florio, J.P., Santucci, Goldstein and Rivera, JJ., concur.