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VITARELLE v. VITARELLE

2008-01387.

2009 NY Slip Op 06422

DARLENE-MARIE L. VITARELLE, appellant, v. RICHARD VITARELLE, JR., ETC., respondent.

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

Decided September 8, 2009.

Attorney(s) appearing for the Case

Greshin, Ziegler & Amicizia, LLP, Smithtown, N.Y. (Matthew H. Bligh of counsel), for appellant.

Siben & Siben, LLP, Bay Shore, N.Y. (Michael P. DeNoto 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 reversed insofar as appealed from, on the law, with costs, and the defendants' cross motion to dismiss the complaint is denied.

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal...

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