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DOUGLAS ELLIMAN LLC D/B/A DOUGLAS ELLIMAN REAL ESTATE, plf-app, v. SOONIL KWON, defcross-app

17-114. DOUGLAS ELLIMAN LLC D/B/A DOUGLAS ELLIMAN REAL ESTATE, plf-app, v. SOONIL KWON, defcross-app — Order (Paul A. Goetz, J.), entered December 14, 2016, modified to deny defendant's dismissal motion and to reinstate the complaint; as modified, order affirmed, with $10 costs to plaintiff-appellant.

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17-114. DOUGLAS ELLIMAN LLC D/B/A DOUGLAS ELLIMAN REAL ESTATE, plf-app, v. SOONIL KWON, defcross-app — Order (Paul A. Goetz, J.), entered December 14, 2016, modified to deny defendant’s dismissal motion and to reinstate the complaint; as modified, order affirmed, with $10 costs to plaintiff-appellant.

Dismissal of this action to recover a real estate brokerage commission was unwarranted on defendant’s preanswer motion. Defendant failed to present documentary evidence that either flatly contradicts the allegations in the complaint so as to warrant dismissal pursuant to CPLR 3211(a)(7) (see Maas v. Cornell Univ., 94 NY2d 87, 91 [1999]), or conclusively establishes a defense as a matter of law so as to warrant dismissal pursuant to CPLR 3211(a)(1) (see Leon v. Martinez, 84 NY2d 83 [1994]).

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