Berenthal & Associates v. Mechanical Plastics Corp. , 733 N.Y.S.2d 347 ( 2001 )

—Order, Supreme Court, New York County (Marylin Diamond, J.), entered May 4, 2001, insofar as it denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), unanimously affirmed, with costs.

While defendant maintains that the retainer agreement it has proffered in support of its motion to dismiss, purportedly capping plaintiff law firm’s entitlement to fees for representing defendant in an arbitration, conclusively establishes that plaintiff is not entitled to additional compensation from defendant as is alleged in the complaint, the motion court correctly held that plaintiffs submissions in opposition to defendant’s motion raise questions as to whether the retainer agreement was in fact timely executed by defendant and delivered to plaintiff. Accordingly, since the proffered retainer agreement cannot on the present state of the record be said to establish defendant’s defense as a matter of law, the motion to dismiss pursuant to CPLR 3211 (a) (1) was properly denied (see, Leon v Martinez, 84 NY2d 83, 87-88; Scott v Bell Atl. Corp., 282 AD2d 180, 182). Concur — Andrias, J. P., Wallach, Lemer, Rubin and Buckley, JJ.