Xiu Jian Sun v. Dick Bailey Serv., Inc.

Xiu Jian Sun v Dick Bailey Serv., Inc. (2016 NY Slip Op 06822) Xiu Jian Sun v Dick Bailey Serv., Inc. 2016 NY Slip Op 06822 Decided on October 19, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on October 19, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY, JJ. 2016-00379 (Index No. 11709/15) [*1]Xiu Jian Sun, etc., appellant, v Dick Bailey Service, Inc., et al., respondents. Xiu Jian Sun, Flushing, NY, appellant pro se. John F. Clennan, Ronkonkoma, NY, for respondents. DECISION & ORDER Appeal by the plaintiff from an order of the Supreme Court, Kings County (Walker, J.), dated December 4, 2015, which granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. ORDERED that order is affirmed, with costs. "In deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Fough v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 AD3d 665, 666; see Leon v Martinez, 84 NY2d 83, 87-88). In this case, the complaint does not set forth any legal theory, nor does it assert any fact in support of a legal theory. Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the complaint for failure to state a cause of action. DILLON, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court