By notice of motion filed on May 22, 2012, under motion sequence number three, defendant Jeannette Algarin Ellis (Ms. Ellis) moved for an order dismissing the instant complaint pursuant to CPLR 3211(a)(7). Plaintiff Anibal Ortiz, Jr. opposes the motion.

BACKGROUND

On October 4, 2011, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's Office. Plaintiff's complaint contains nineteen allegations of fact and seven annexed exhibits. Ms. Ellis has not answered the complaint and has instead moved to dismiss the complaint.

MOTION PAPERS

Ms. Ellis' motion papers consist of a notice of motion, her attorney's affirmation and five annexed exhibits labeled Exhibit A through E. Exhibit A is the complaint. Exhibit B is the affidavit of defendant. Exhibit C is the legal services agreement between Robert J. Ellis, Jr. & [*2]Associates and plaintiff, dated July 15, 2004. Exhibit D is a letter from Robert J. Ellis to plaintiff, dated March 23, 2005. Exhibit E is the retainer agreement and invoice between Ortiz & Ortiz, L.L.P. and defendant, dated February 4, 2011.

In opposition to the motion plaintiff submitted his affidavit and seven annexed exhibits labeled Exhibit A through G. Exhibit A is the complaint. Exhibit B is a certified mail receipt. Exhibit C is labeled "Affirmation to Dispense with the Filing of a Bond" signed by defendant and dated January 26, 2006. Exhibit D is the transcripts of a proceeding conducted on the instant action on February 3, 2012 for an order to show cause. Exhibit E is a preliminary conference order related to the instant case, dated March 12, 2012. Exhibit F is a photocopy of an envelope. Exhibit G is an affidavit of Josephine Agosto.

Ms. Ellis' attorney also submitted an affirmation affirming that defendant's motion to dismiss was properly served on defendant Charles G. Flore, Office of the Public Administrator for Kings County.

LAW AND APPLICATION

CPLR 3013 provides that "statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Indeed, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" (Vanscoy v. Namic USA Corp., 234 AD2d 680, 681-682 [3d 1996], quoting Muka v. Greene County, 101 AD2d 965, 965 [3d 1984]). Moreover, the court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Stucklen v. Kabro Assocs., 18 AD3d 461, 462 [2d 2005]). However, "bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference" (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 704 [2d 2008]).

Additionally, "in assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Simmons v. Edelstein, 32 AD3d 464, 465 [2d 2006]). In sum, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]).

Plaintiff's complaint consists of nineteen numbered paragraphs. Of the nineteen paragraphs, only two contain allegations of fact relating to defendant.

In the third paragraph of the complaint, plaintiff alleges that "defendant Jeannette Algarin Ellis has two known places of residence" and is "an interested party in this resolution." In the nineteenth paragraph of the complaint, plaintiff alleges that Robert John Ellis Jr.'s account or property "might have been jointly or separately owned with his wife, Jeannette Algarin Ellis" and that Robert John Ellis Jr. "acted in a fraudulent manner for the purpose of self-enrichment." Ms. Ellis is not referred to anywhere else in the complaint. Further, the paragraphs that contains allegations of fact fail to state a cognizable claim.

The Court likewise finds that the exhibits annexed to the complaint do not set forth a claim. None of the annexed exhibits refer or relate to paragraph three or nineteen of the [*3]complaint, which are the only paragraphs that contain allegations of fact regarding Ms. Ellis. In fact, all of the annexed exhibits relate only to the other named defendants in this action. To that point, Exhibit A (a Decree Appointing Administrator) and Exhibit F (a Certificate of Death), relate to Robert John Ellis Jr.'s estate and his death. Additionally, Exhibits B, C, D, E and G relate to plaintiff's ongoing criminal appeal in which Robert John Ellis Jr. was the attorney of record prior to his death.

Ms. Ellis's name is referenced only in Robert John Ellis Jr.'s death certificate, in the field for surviving spouse, and nowhere else. In sum, none of the annexed exhibits remedy the complaint's deficiency.

Plaintiff also submitted an affidavit. The affidavit may be considered to remedy pleading defects in the complaint (see Simmons, 32 AD3d at 465). The affidavit contains twelve numbered paragraphs, of which only the seventh paragraph pleads a comprehensible allegation of fact. Paragraph seven reads "defendant was fully aware of the proper owner of the $31,523.22 in cash/currency the deceased left in his home. See Exhibit C,'."

It appears that plaintiff is referencing the document annexed as Exhibit C to the affidavit. However, that document does not support plaintiff's allegations in his affidavit. In sum, plaintiff's complaint and affidavit do not state a cause of action.

The court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, but the court cannot strain to give meaning to a pleading which almost completely fails to state any coherent or comprehensible factual allegations (see CPLR 3013, Heffez v. L & G Gen. Constr., Inc., 56 AD3d 526 [2d 2008]). Thus, inasmuch as plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211(a)(7) (see Guggenheimer, 43 NY2d at 275).

CONCLUSION

Accordingly, defendant, Ms. Ellis' motion to dismiss plaintiff's complaint, pursuant to CPLR 3211(a)(7), is granted. The complaint is dismissed as to Ms. Ellis only.

The foregoing constitutes the decision and order of the court.

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.