PIRRO & SONS, INC. v. THOMAS J. PIRRO, JR. FUNERAL HOME

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

166 CA 15-00968 PRESENT: WHALEN, P.J., LINDLEY, TROUTMAN, AND SCUDDER, JJ.

PIRRO & SONS, INC., PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

THOMAS J. PIRRO, JR. FUNERAL HOME AND THOMAS J. PIRRO, JR., DEFENDANTS-RESPONDENTS.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BARCLAY DAMON, LLP, SYRACUSE (MICHAEL A. OROPALLO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered July 25, 2014. The order granted defendants’ motion to dismiss the petition.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the special proceeding is converted to an action, the motion is denied and the petition is reinstated as a complaint.

Memorandum: Pirro & Sons, Inc. commenced this “proceeding” seeking a preliminary and permanent injunction, alleging that Thomas J. Pirro, Jr. Funeral Home and Thomas J. Pirro, Jr. violated the terms of a settlement agreement in a prior action, which was thereafter discontinued, by using language in an advertisement in a church news bulletin that indicated an affiliation with Pirro & Sons, Inc. We note at the outset that Pirro & Sons, Inc. correctly concedes that it improperly commenced a proceeding rather than an action, and we exercise our discretion under CPLR 103 (c) to convert this matter to an action for breach of contract (see e.g. Nichols v BDS Landscape Design, 79 AD3d 1690, 1691). We thus deem the petition to be a complaint, and we note that Pirro & Sons, Inc. is properly denominated as a plaintiff, while Thomas J. Pirro, Jr. Funeral Home and Thomas J. Pirro, Jr. are properly denominated as defendants.

We conclude that Supreme Court erred in granting defendants’ motion to dismiss the complaint pursuant to CPLR 3211. In deciding a motion pursuant to CPLR 3211, we must afford plaintiff “the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88). We conclude that plaintiff alleged a cognizable claim for breach of contract for which it seeks a permanent

-2- 166 CA 15-00968

injunction (see generally Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 216-217).

Entered: March 18, 2016 Frances E. Cafarell Clerk of the Court