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ALEXANDRE BORISOVSKI, pl-app v. THE CITY OF NEW YORK, def-res

13-192 ALEXANDRE BORISOVSKI, pl-app v. THE CITY OF NEW YORK, def-res — Order (Frank P. Nervo, J.), entered June 15, 2012, reversed, without costs, motion denied and complaint reinstated.

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13-192 ALEXANDRE BORISOVSKI, pl-app v. THE CITY OF NEW YORK, def-res — Order (Frank P. Nervo, J.), entered June 15, 2012, reversed, without costs, motion denied and complaint reinstated.

Accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]), the complaint sufficiently states a cause of action against defendant based on its alleged arbitrary refusal to carry plaintiff as a passenger on its ferry and related conduct (see Barney v. Oyster Bay & Huntington Steamboat Co., 67 NY 301 [1876]; Aplington v. Pullman Co., 110 App Div 250 [1905]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 [2005]).

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