PEDESTRIAN WHO TRIPPED OVER METAL CELLAR DOORS BEATS MOTION OF TENANT-DEFENDANT TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Demetra Simos v. Vic-Armen Realty, LLC

Date: Feb. 14, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered December 9, 2010, as granted the motion of the defendant Blvd Wines & Liquors, Inc., in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Blvd Wines & Liquors, Inc., in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is denied.

In May 2009, the plaintiff commenced this action against, among others, Blvd Wines & Liquors, Inc. (hereinafter Blvd Wines), to recover damages for personal injuries she allegedly sustained when she fell over metal cellar doors on the sidewalk abutting premises leased by Blvd Wines. As relevant here, the Supreme Court granted Blvd Wines' motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

"In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' " (Sinensky v. Rokowsky, 22 A.D.3d 563, 564, 802 N.Y.S.2d 491, quoting Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; see Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153).

Here, Blvd Wines did not submit evidence demonstrating that any fact alleged in the complaint "was, undisputedly, 'not a fact at all' " (Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). That standard was not satisfied either by the affidavit of the owner of Blvd Wines (see Bodden v. Kean, 86 A.D.3d 524, 526, 927 N.Y.S.2d 137; Kempf v. Magida, 37 A.D.3d 763, 765, 832 N.Y.S.2d 47) or by the provisions of the lease between Blvd Wines and the owner of the premises relating to the control and maintenance of the area where the accident occurred (see Maloney v. King, 254 A.D.2d 231, 679 N.Y.S.2d 307; cf. Columbo v. Chase Manhattan Automotive Fin. Corp., 297 A.D.2d 327, 328, 746 N.Y.S.2d 392).

Accordingly, the Supreme Court should have denied Blvd Wines' motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

In light of our determination, we need not reach the plaintiff's remaining contention.

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