
    Montefiore Medical Center, Respondent, v Touchstone Health Partnership, Inc., Appellant.
    [962 NYS2d 904]
   Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered on or about August 2, 2012, which denied defendant’s motion to dismiss the second cause of action, unanimously affirmed, without costs.

On this motion to dismiss, the complaint is to be “afforded a liberal construction” and “the facts as alleged in the complaint [are accepted] as true” (Leon v Martinez, 84 NY2d 83, 87 [1994]). The written agreement, which undisputedly awaited a more complete one, was performed for several years and did not utterly refute the allegations of the complaint (see e.g. Four Seasons Hotels v Vinnik, 127 AD2d 310, 317 [1st Dept 1987]).

Concur—Andrias, J.E, Acosta, Freedman, Richter and Gische, JJ.  