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McCLAIN v. CITY OF NEW YORK

2008-09500.

2009 NY Slip Op 06409

NAQUAN McCLAIN, ETC., ET AL., appellants, v. CITY OF NEW YORK, respondent.

Appellate Division of the Supreme Court of New York, Second Department.

Decided September 8, 2009.

Attorney(s) appearing for the Case

Kurzman Karelsen & Frank, LLP, New York, N.Y. (Charles Palella of counsel) for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel), for respondent.

Before: A. Gail Prudenti, P.J., Howard Miller, Joseph Covello, Leonard B. Austin, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83...

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