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Alley Pond House Corp. v Magic Pest Mgt., LLC
2014 NY Slip Op 51238(U) [44 Misc 3d 136(A)]
Decided on July 28, 2014
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-2106 Q C

Alley Pond House Corp. Doing Business as MIZUMI, Respondent, July 28, 2014

against

Magic Pest Management, LLC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 16, 2012. The order denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) and (7).

ORDERED that the order is affirmed, without costs.

In this action for, among other things, breach of a pest-control service agreement, defendant appeals from an order of the Civil Court that denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) and (7).

The branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (2) was properly denied, as the complaint's demand for damages of "not less than" $20,000 for the first cause of action and "not less than" $1,600 for the second cause of action did not exceed the Civil Court's monetary jurisdiction of $25,000 (CCA 202).


The branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7) was likewise properly denied, as the failure, if any, of the complaint to satisfy the particularity requirements of CPLR 3013 was remedied by plaintiff's affidavit in opposition to defendant's motion (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). In addition, contrary to defendant's contention, the Civil Court's refusal to treat defendant's motion to dismiss as one for summary judgment was not an improvident exercise of discretion, as defendant's request that the court do so was raised for the first time in defendant's reply papers, plaintiff was not on notice that defendant's motion would so be treated, and the parties did not make it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course (CPLR 3211 [c]; see Four Seasons Hotels v Vinnik, 127 AD2d 310 [1987]). In any event, the motion papers reveal that material facts are in dispute.

We have examined defendant's other contentions and find them to be without merit.

Accordingly, the order is affirmed.


Weston, J.P., Aliotta and Elliot, JJ., concur.


Decision Date: July 28, 2014