Architect's Motion to Dismiss Accident Complaint Improperly Converted to Summary Judgment Motion; Dismissal Denied as Premature

Case: Jones v. Rochdale Village, Inc.

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

Date: 6/27/12

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

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RELATED POSTS:

JETBLUE LOSES ITS MOTION FOR SUMMARY JUDGMENT TO DISMISS COMPLAINT OF AGAINST ACCIDENT VICTIM WHO FELL ON JETBRIDGE AT J.F.K.

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

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Facts: This resident of Rochdale Village, in Jamaica, Queens, tripped on a bar installed in front of sliding glass doors leading to her apartment's terrace.

She sued everyone her accident lawyers could think of. The building owner and architect, and even the company that manufactured the sliding doors.

The architect made a pre-answer motion to dismiss. As this blog has noted, that is a tough way to go. Here, the court converted the motion to dismiss to a motion for summary judgment, without required the other parties.

This defendant also sought to dismiss cross-claims against it for contractual indemnification by its co-defendants for the accident victim's claims and for failing to cover the other defendants with insurance. This dismissal motion could be heard as there could be no responsive pleading to the cross-claims.

Held: Converting the motion to dismiss this accident case into a motion for summary judgment was "premature," and the Court will treat the motion to dismiss as a motion to dismiss, and not for summary judgment. The complaint adequately stated a cause of action and motion to dismiss was denied as to this defendant.

There were no contract requirements that the moving defendnat buy insurance or indemnify its co-defendants. Therefore it prevails on that portion of its motion and each defendant's liability for the happening of this accident will be based on its own conduct.

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