Montefiore Med. Ctr. v Touchstone Health Partnership, Inc.
2013 NY Slip Op 02673 [105 AD3d 589]
April 18, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2013


Montefiore Medical Center, Respondent,
v
Touchstone Health Partnership, Inc., Appellant.

—[*1] Moses & Singer LLP, New York (David M. Rabinowitz of counsel), for appellant.

Garfunkel Wild, P.C., Great Neck (Michael J. Keane of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about August 2, 2012, which denied defendant's motion to dismiss the second cause of action, unanimously affirmed, without costs.

On this motion to dismiss, the complaint is to be "afforded a liberal construction" and "the facts as alleged in the complaint [are accepted] as true" (Leon v Martinez, 84 NY2d 83, 87 [1994]). The written agreement, which undisputedly awaited a more complete one, was performed for several years and did not utterly refute the allegations of the complaint (see e.g. Four Seasons Hotels v Vinnik, 127 AD2d 310, 317 [1st Dept 1987]). Concur—Andrias, J.P., Acosta, Freedman, Richter and Gische, JJ.