Andrew Maloney, Respondent, v. Anthony King et al., Appellants

Andrew Maloney, Respondent, v Anthony King et al., Appellants. [679 NYS2d 307] [MAJORITY] Order, Supreme Court, New York County (Carol Huff, J.), entered August 5, 1997, which, to the extent appealed from, denied defendants’ motion to dismiss plaintiffs breach of contract claim, unanimously affirmed, with costs. Construing the complaint in the light most favorable to the plaintiff and accepting all of its factual allegations as true, as is generally appropriate in passing upon a motion to dismiss for failure to state a cause of action (Morone v Morone, 50 NY2d 481, 484), we agree with the motion court that the complaint sufficiently alleges a cause of action for breach of contract. While it is true, as defendants contend, that the above-noted rule of construction may be overcome where factual claims are flatly contradicted by documentary evidence (see, Quail Ridge Assocs. v Chemical Bank, 162 AD2d 917, lv dismissed 76 NY2d 936), the documentary evidence presented by defendants is, as the motion court observed, far from conclusive. We have considered defendants’ remaining contentions and find them to be unpersuasive. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Andrias and Saxe, JJ.