Long v. Allen AME Transportation Corp.

In an action to recover damages for personal injuries, the defendant Academy Bus Tours of New York, Inc., appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 6, 2006, which denied its motion to dismiss the complaint, in effect, pursuant to CFLR 3211 (a) (1). Ordered that the order is affirmed, with costs. A motion to dismiss a complaint pursuant to CFLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the 1115 Supreme Court correctly concluded, the complaint contains sufficient allegations to state a cognizable cause of action against the appellant, which is not definitively refuted by documentary evidence. Crane, J.P., Goldstein, Skelos and Garni, JJ., concur.