Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered July 2, 2007. The order, insofar as appealed from, upon granting plaintiff's motion for reargument, in effect, adhered to the court's prior determination granting defendant's motion to dismiss the complaint.

Order, insofar as appealed from, reversed without costs, and, upon the granting of plaintiff's motion for reargument, defendant's motion to dismiss the complaint denied.

Plaintiff, the operator of a nursing home, provided residence, health care and related services to Angelina Sorezza from February 4, 2002 through June 28, 2005. A portion of the fees incurred by Sorezza while residing at plaintiff's nursing home was paid by Blue Cross and Blue Shield. However, payments from said insurer ceased, and a balance in the sum of $21,894.30 remains due. Plaintiff alleged in the complaint that defendant, Sorezza's nephew, executed an admission agreement wherein he agreed, inter alia, to insure that plaintiff receives payment from Sorezza's assets, insurance company or government benefits. Plaintiff alleged further that defendant failed to comply with the terms and conditions of the admission agreement by not making payment from Sorezza's assets and by failing to obtain Medicaid coverage for his aunt.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). He argued that he cannot be held personally liable for the balance alleged to be due because he did not guarantee his aunt's obligations. The Civil Court granted defendant's motion to dismiss the complaint. Thereafter, plaintiff moved, inter alia, for reargument. The court granted reargument, and, upon reargument, in effect, adhered to its original determination dismissing the complaint. This appeal by plaintiff ensued. [*2]

When a court addresses a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]), the allegations contained in the complaint should be accepted as true and the court must determine whether such facts fit any cognizable legal theory (see Morales v Copy Right, Inc., 28 AD3d 440 [2006]). Moreover, "whether plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC , Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). Applying this standard here, we conclude that plaintiff's cause of action for breach of contract should survive defendant's motion to dismiss. While we agree that defendant is not being sued personally as a guarantor, the court went beyond the appropriate scope of review on a motion to dismiss and erred by deciding, on the facts presented, that defendant was not liable to plaintiff on the basis of a breach of his obligations under the contract.

Accordingly, defendant's motion to dismiss the complaint is denied.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: February 20, 2009