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STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE ____________________________________ MASSA FOR CONGRESS, Plaintiff, v.

Index #2011/02654 JOSEPH RACALTO, Defendants. ___________________________________ Defendant Joseph Racalto (Racalto) moves for an order pursuant to CPLR 3211(a)(1) and (7) for an order dismissing plaintiff Massa for Congress complaint. Defendant cross moves This suit DECISION AND ORDER

pursuant to CPLR 3025(b) to amend the complaint.

asserts that through a misrepresentation defendant fraudulently received $40,000 from plaintiff, that defendant was thereby unjustly enriched and such funds were wrongfully converted. On any motion to dismiss under CPLR 3211 the pleading is afforded a liberal construction and the facts as alleged are presumed to be true. Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). Dismissal is warranted under paragraph 1 of subdivision (a) of CPLR 3211 only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. Id. at 88. See also, Goshen v. Mut. Life Ins.

Co., 98 N.Y.2d 314, 326 (2002)(motion may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a 1

defense as a matter of law); 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002). In order to

prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1), the documents relied upon must definitively dispose of plaintiffs claim. Bronxville Knolls,

Inc. v. Webster Town Center Partnership, 221 A.D.2d 248 (1st Dept. 1995)(citations omitted). See also, Zuckerwise v.

Sorceron, Inc., 289 A.D.2d 114 (1st Dept. 2001). With respect to a motion to dismiss made under CPLR 3211(a)(7), the complaint must be given every favorable inference and the allegations in the complaint are deemed to be true. Dannasch v. Bifulco, 184 A.D.2d 415, 417 (1st Dept. 1992).

When considering such a motion, it is the task of the court to determine whether, accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated. Campaign for Fiscal Equity, Inc. v. State of If the

New York, 86 N.Y.2d 307, 318 (1995)(citations omitted).

court determines that plaintiffs are entitled to relief on any reasonable view of the facts stated, the courts inquiry is complete, and the pleading is deemed legally sufficient. Id. In

this case, plaintiffs claims must be examined in accordance with the above standards. CPLR 3211(b). To the extent defendant relies upon e-mails and his own affidavit, it is well established that such are not documents

within the meaning of CPLR 3211(a)(1).

Fontanetta v. John Doe 1,

73 A.D.3d 78, 85 (2d Dept. 2010)(e-mails, deposition testimony and affidavits are not documentary evidence as contemplated by CPLR 3211(a)(1)). See also, Weil, Gotshal & Manges, LLP v.

Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 (1st Dept. 2004)(reversing trial court grant of motion to dismiss finding e-mails and trial testimony was not the type of documentary evidence the legislature contemplated when passing CPLR 3211(a)(1)). [T]o be considered documentary, evidence Fontanetta

must be unambiguous and of undisputed authenticity.

v. John Doe 1, 73 A.D.3d at 86 (citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22)). Furthermore, the phone records and the FEC Form 3 do Such records

not conclusively dispose of plaintiffs claims.

cannot speak to the content of the conversations between the parties. Defendants motion to dismiss pursuant to CPLR As defendants documentary evidence is

3211(a)(1) is denied.

not evidence which may be considered pursuant to CPLR 3211(a)(1), defendants motion to dismiss, premised on 3211(a)(1), is denied. For the same reasons, defendants arguments that plaintiff failed to state a cause of action, because under defendants view the court need not consider as true allegations contradicted by defendants e-mail documents (CPLR 3211(a)(7)), lack merit and plaintiffs motion to dismiss on this ground is denied.

Defendant also argues that plaintiffs fraud allegation, on its face, fails to plead justifiable reliance. also fails. This contention

Plaintiff plainly states at paragraph 12 of the

complaint that it released the $40,000 to defendant in reliance upon defendants representation that Mr. Massa had approved the payment. Defendants remaining arguments will be discussed below

with plaintiffs cross motion to amend its complaint. By cross-motion plaintiff seeks to amend the caption of its complaint to Massa for Congress, by Beverly Massa, Treasurer. Plaintiff also seeks to amplify its fraud allegations. Where a

party moves to dismiss under CPLR 3211(a) or CPLR 3211(b), CPLR 3211(f) extends the time to serve a responsive pleading and, in conjunction with CPLR 3025(a), will also extend the time of the pleading party to amend as of right. 5 Weinstein-Korn-Miller,

New York Civil Practice 3025.06 (citing Johnson v. Spence, 286 A.D.2d 481, 483 (2d Dept. 2001)(the plaintiff could have amended her complaint as of right, since the defendant's motion to dismiss the complaint, which extended his time to answer the complaint, also extended the plaintiff's time to amend the complaint). Additionally, [f]ailure to institute the action in

the name of the president or treasurer "is an irregularity which may be corrected in the absence of prejudice to a right of any party." Formula One Constructors Asso. v. Watkins Glen Grand Prix Corp., 110 Misc.2d 247, 248 (Sup. Ct. Schuyler Co.,1981) (citing

Miller v. Student Assn. of State Univ. of N. Y. at Albany, 75 A.D.2d 843 (2d Dept. 1980)). Here, defendants have moved pursuant to CPLR 3211(a), and therefore, plaintiff is entitled to amend its complaint as of right. Id. See also, Homemakers, Inc., of Long Island v.

Williams, 100 A.D.2d 505, 507 (2d Dept. 1984)(We find no error with Special Term's order permitting plaintiff to amend the caption of the summons and verified complaint . . . . The amendment related to a misdescription in plaintiff's legal status and was properly permitted). Accordingly, the court finds

defendants motion to dismiss based upon plaintiffs lack of standing for failure to sue in the name of the treasurer of an unincorporated association is moot. As for defendants argument that plaintiff lacks standing for failure to file a certificate pursuant to General Association Law (GAL) 18, this argument lacks merit. The term

association as used in 18 is defined in the GAL at 2 subparagraph 4. GAL 18(1). Section 2, subparagraph 4 provides

that [t]he term association, as used in article 4 [18 through 19-a] of this chapter, means a joint stock association or a business trust as defined in this section. A joint stock

association means a company or enterprise having written articles of association and capital stock divided into shares, but does not include a corporation or business trust. GAL

2(1).

A business trust means any association operating a

business under a written instrument or declaration of trust, the beneficial interest under which is divided into shares represented by certificates. GAL 2(2). Defendant has made no

showing, or raised any arguments that plaintiff qualifies as either a joint stock association or a business trust. Therefore,

the requirements of GAL 18 are not applicable here and plaintiffs motion to dismiss on this ground must be denied. See Booth Oil Site Administrative Group v. Safety-Kleen Corp., 532 F.Supp.2d 477, 497 (W.D.N.Y. 2007)(18 of the General Associations Law, which requires the filing of a certificate with the department of state, applies only to associations defined by statute as a joint stock association or a business trust)(citing Formula One Constructors Asso. v. Watkins Glen Grand Prix Corp., 110 Misc.2d 247 (Sup. Ct. Schuyler Co.,1981) ; Denmark Cheese Association v. hazard Advertising Company, Inc., 33 A.D.2d 761 (1st Dept. 1969)(Plaintiff is neither a joint stock association nor a business trust as defined in subdivisions 1 and 2 of section 2 of the General Associations Law). Consideration of defendants argument addressed to CPLR 3016(b), that allegations of fraud must be pleaded in detail (as well as defendants other arguments), necessarily requires the court to review the complaint. The degree of specificity to

comply with CPLR 3016(b) must be determined on a case by case basis. 5 Weinstein-Korn-Miller, New York Civil Practice Defendant here, however, The complaint

3016.05 (collecting cases at fn. 6).

submitted only part of the complaint to the court.

submitted appears to omit a page and thus fails to contain paragraphs 13-20 of the complaint. MacCregor, June 28, 2011, Ex. A, E. Affirmation of Alison L. Thus, the court cannot make

a determination as to whether a cause of action for fraud or misrepresentation has been pleaded in sufficient detail. 3016(b). CPLR

As the proposed amended complaint contains paragraphs

13-20, and defendant has not otherwise claimed that the complaint as served failed to contain paragraphs 13-20, the court cannot assume some sort of misnumbering in the complaint. Defendants

motion directed to the adequacy of the complaint under CPLR 3016(b) is denied. Finally, plaintiffs argument for a venue change, raised in responsive papers to defendants cross motion, is not properly before the court as plaintiff has not moved on this ground and the courts consideration of a venue change awaits a proper motion for such relief. CPLR 2215; Rinaldi v. Rochford, 77

A.D.3d 720 (2d Dept. 2010). SO ORDERED. ______________________ KENNETH R. FISHER JUSTICE SUPREME COURT DATED: August 4, 2011 Rochester, New York

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