| Borisovski v City of New York |
| 2013 NY Slip Op 51649(U) [41 Misc 3d 126(A)] |
| Decided on October 7, 2013 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court of the City of New York, New
York County (Frank P. Nervo, J.), entered June 15, 2012, which granted defendant's
motion to dismiss the complaint pursuant to CPLR 3211(a)(7).
Per Curiam.
Order (Frank P. Nervo, J.), entered June 15, 2012, reversed, without costs, motion denied and complaint reinstated.
Accepting plaintiff's allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint sufficiently states a cause of action against defendant based on its alleged arbitrary refusal to carry plaintiff as a passenger on its ferry and related conduct (see Barney v Oyster Bay & Huntington Steamboat Co., 67 NY 301 [1876]; Aplington v Pullman Co., 110 App Div 250 [1905])."Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]).
We note plaintiff's acknowledgment that the complaint does not allege any negligent supervision or 42 USC § 1983 causes of action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 2013