Gerald R. Clifford, Appellant, v. Montana Mills Bread Co., Inc., et al., Respondents

Gerald R. Clifford, Appellant, v Montana Mills Bread Co., Inc., et al., Respondents. [693 NYS2d 472] [MAJORITY] —Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Plaintiff commenced this action seeking reformation of the rent provision of a commercial lease agreement. Supreme Court erred in granting defendants’ motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). On the motion to dismiss the complaint, “plaintiff is benefitted by the rule that every favorable inference must be afforded the facts alleged in the complaint and in the various motion papers submitted by him” (Held v Kaufman, 91 NY2d 425, 432; see, Leon v Martinez, 84 NY2d 83, 87-88). The facts alleged in plaintiff’s submissions, if accepted as true, support the conclusion that the rent provisions of the lease agreement do not reflect the agreement of the parties. “Where there is no mistake about the agreement, and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected” (Born v Schrenkeisen, 110 NY 55, 59; see, Nash v Kornblum, 12 NY2d 42, 46-47; Hadley v Clabeau, 161 AD2d 1141; 16 NY Jur 2d, Cancellation and Reformation of Instruments, § 66). Although plaintiff ultimately will bear the burden of proving that the lease does not reflect the agreement of the parties (see, Matter of Wallace v 600 Partners Co., 205 AD2d 202, affd 86 NY2d 543; Burnside Bargain Store v Carmel, 156 AD2d 248), we conclude that he has stated a cause of action for reformation. (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Dismiss Pleading.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.