Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, NY (Anthony Pasca of counsel), for appellant.

Andrew L. Saraga, Huntington, NY, for respondent.

In an action, inter alia, to recover damages for unjust enrichment, the defendant Josh Guberman appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated September 8, 2017. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleging unjust enrichment insofar as asserted against him.

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

On or about October 20, 2015, the defendant 136 Bishops Lane, LLC (hereinafter Bishops Lane), as owner, entered into a written agreement (hereinafter the agreement) with the plaintiff, Georgica Builders, Ltd., as contractor, regarding the construction of a single-family residence at 136 Bishops Lane in Southampton. The defendant Josh Guberman is a member of Bishops Lane. According to the plaintiff, in March 2016, the defendants failed to make payments due to the plaintiff as required by the agreement. Thus, on April 12, 2016, the plaintiff filed a mechanic's lien against the subject premises.

Thereafter, on September 14, 2016, the plaintiff commenced this action against Bishops Lane and Guberman seeking to foreclose on the mechanic's lien (first cause of action), to recover damages for breach of contract (second cause of action), to recover on an account stated (third cause of action), and to recover damages for unjust enrichment (fourth cause of action). Guberman moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against him.

In an order dated September 8, 2017, the Supreme Court granted those branches of the motion which were to dismiss the first, second, and third causes of action insofar as asserted against Guberman. However, the court denied that branch of Guberman's motion which was to dismiss the fourth cause of action insofar as asserted against him. Guberman appeals.

We agree with the Supreme Court's determination denying that branch of Guberman's motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the fourth cause of action, alleging unjust enrichment, insofar as asserted against him.

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Gould v Decolator, 121 AD3d 845, 847 [2014]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]). On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88). "A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Well v Yeshiva Rambam, 300 AD2d 580, 580 [2002]; see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]), and upon considering such an affidavit, the facts alleged therein must also be assumed to be true (see Pike v New York Life Ins. Co., 72 AD3d 1043, 1049 [2010]). Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it (see Leon v Martinez, 84 NY2d at 88; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Here, the complaint, as amplified by the affidavit of the plaintiff's president, which was submitted in opposition to Guberman's motion, set forth a cognizable cause of action alleging unjust enrichment insofar as asserted against Guberman (see generally Kalmon Dolgin Affiliates, Inc. v Tonacchio, 110 AD3d 848, 851 [2013]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793 [2011]). Additionally, the documentary evidence submitted by Guberman in support of his motion to dismiss does not utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, or show that the allegations as to the cause of action alleging unjust enrichment are not facts at all (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sposato v Paboojian, 110 AD3d 979, 980 [2013]).

Guberman's remaining contention is not properly before this Court (see Hayes v Barroga-Hayes, 103 AD3d 777, 778 [2013]). Scheinkman, P.J., Dillon, Maltese and LaSalle, JJ., concur.