Defendant Rosemark Contractors (hereinafter "Rosemark") moves for dismissal of plaintiffs' complaint pursuant to CPLR §3211(a)(1) and §3211(a)(7) claiming each plaintiff has failed to state a cause of action based on negligence against Rosemark, and that documentary evidence establishes a complete defense to the action.

Plaintiffs Minerva Rodriguez and Nicholas Dixon allege that on October 16, 2005, a window fell from a construction site located at 2342 Atlantic Avenue, Brooklyn, New York. Plaintiffs allege that this window fell and struck both of them, causing injury to each.

Plaintiffs Rodriguez and Dixon filed a joint complaint alleging a separate cause of action for negligence by each plaintiff against all named defendants. Rosemark claims that it was not [*2]responsible for plaintiffs' injuries because it was not affiliated with the construction project and did not perform any work at the building.

The court for purposes of a motion pursuant to CPLR § 3211(a)(7) must accepting as true the factual averments of the complaint and according plaintiffs the benefit of all favorable inferences determine whether plaintiffs can succeed upon any reasonable view of the facts as stated. See Simmons v. Edelstein, 32 AD3d 464, 820 NYS2d 614 (2nd Dept. 2006). A motion to dismiss pursuant to CPLR § 3211(a)(7) must fail if the complaint states in some cognizable form any cause of action known to our law. See Rubinstein v. Salomon, 46 AD3d 536, 849 NYS2d 69 (2nd Dept. 2007). To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence must utterly refute plaintiffs factual allegations, conclusively establishing a defense as a matter of law. See Farber v. Breslin, 47 AD3d 873, 850 NYS2d 604 (2nd Dept. 2008).

In support of its motion to dismiss, Rosemark annexes the affidavits of Saul Rosenblum, President of Rosemark, and Henry Radusky, a licensed architect. These affidavits claim that Rosemark had no affiliation with the project and that Rosemark "never performed any work at the construction site." Rosemark also annexes various building department and Environmental Control Board (hereinafter "ECB") records for the work site. Among these records is a work permit issued for interior demolition which covers the date of the accident and lists Sol Vaynman of "Elvira Svc. Inc" as the contractor performing the proposed work.

In opposition, plaintiff annexes an earlier work permit for interior demolition that lists Saul Rosenboon (sic) of Rosemark as the contractor performing the proposed work at the premises. The period for this permit covered September 5, 2003 through April 29, 2004. Further, on February 18, 2005, an ECB violation was issued to Saul Rosenbloom for failing to provide handrails on an interior stairwell.

In reply, Mr. Roseblum denies obtaining the work permit claiming that some unknown person or persons are using his name and business to file and obtain false work permits. However, Mr. Rosenblum admits paying this violation after a hearing held on June 6, 2005, and claims to have been reimbursed by the owner of the premises for this violation. Further, Rosemark annexes the purported reimbursement check annexed, which is in an amount greater than the amount charged for the ECB violation.

This documentary evidence cannot be said to resolve all factual issues as a matter of law and conclusively dispose of plaintiffs' claims. Instead, these documents raise factual issues concerning whether Rosemark had some connection to the work site at or about the time of the accident. Thus, the documentation is not conclusive as to Rosemark's defense, nor does it flatly contradict plaintiffs' claims as required under CPLR § 3211 (a)(1). See Farber v. Breslin, supra at 876.

Since a claim may not be dismissed under CPLR § 3211 (a)(7) unless it can be said that no significant dispute of material facts exist, the motion must be denied in its entirety. See Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17 (1977). This constitutes the decision and order of the court. Defendant Rosemark is directed to settle Order on notice.

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J. S. C.