Clarke v. Laidlaw Transit, Inc.

• Decision Date: 25 February 2015
• Citation: 2015 N.Y. Slip Op. 01602,5 N.Y.S.3d 138,125 A.D.3d 920
• Parties: Ibia M. CLARKE, appellant, v. LAIDLAW TRANSIT, INC., respondent.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 920

5 N.Y.S.3d 138

2015 N.Y. Slip Op. 01602

Ibia M. CLARKE, appellant

v.LAIDLAW TRANSIT, INC., respondent.

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

Feb. 25, 2015.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Hodges Walsh Messemer & Moroknek, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), dated January 2, 2014, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a) and denied her cross motion for leave to amend the caption and to serve and file a supplemental summons and amended complaint.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion to dismiss the complaint is denied, and the plaintiff's cross motion for leave to amend the caption and to serve and file a supplemental summons and amended complaint is granted.

The plaintiff, an employee of First Student Management, LLC (hereinafter FSM), allegedly was injured when she fell due to a defective condition at FSM's place of business. She commenced this action against the record owner of the premises, the defendant, Laidlaw Transit, Inc. After answering the complaint, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), contending, inter alia, that it had merged with First Student, Inc. (hereinafter First Student), and no longer existed and that, in any event, First Student and FSM were functionally the same entity with respect to the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6] ). The plaintiff cross-moved for leave to amend the caption and to serve and file a supplemental summons and amended complaint naming the defendant as “First Student, Inc. f/k/a Laidlaw Transit, Inc.” The Supreme Court granted the defendant's motion and denied the plaintiff's cross motion. The plaintiff appeals.

A defendant may move to dismiss a complaint under CPLR 3211(a)(1) “on the ground that ... a defense is founded upon documentary evidence” (CPLR 3211 [a] ). A motion on this ground “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Attias v. Costiera, 120 A.D.3d 1281, 1282, 993 N.Y.S.2d 59 ; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 884 N.Y.S.2d 94, affd. 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135 ). Affidavits are not documentary evidence within the meaning of CPLR 3211(a)(1) (see Attias v. Costiera, 120 A.D.3d at 1283, 993 N.Y.S.2d 59 ; Matter of Walker, 117 A.D.3d 838, 839, 985 N.Y.S.2d 690 ; Fontanetta v. John Doe 1, 73 A.D.3d 78, 85, 898 N.Y.S.2d 569 ).

Here, most of the evidence submitted in support of the defendant's motion was not documentary evidence within the meaning of CPLR 3211(a)(1). The evidence that did qualify as documentary evidence did not conclusively establish that the defendant and FSM were alter egos within the meaning of the Workers' Compensation Law (see Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 651, 924 N.Y.S.2d 336 ; see also McDonald v. Winter Bros. Transfer Sta. Corp., 120 A.D.3d 1315, 1315, 992 N.Y.S.2d 568 ; Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 595, 906 N.Y.S.2d 67 ; Hageman v. B & G Bldg. Servs., LLC, 33 A.D.3d 860, 861, 823 N.Y.S.2d 211 ).

With respect to that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7), on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be 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 Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d at 125, 884 N.Y.S.2d 94 ; Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70 ). Thus, “a motion to dismiss made pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ; see Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Fisher v. DiPietro, 54 A.D.3d 892, 894, 864 N.Y.S.2d 532 ).

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ” (Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). “If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” (id. at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action” (Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 683, 941 N.Y.S.2d 675 [internal quotation marks omitted]; see Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 ). The plaintiff “may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351, 961 N.Y.S.2d 364, 985 N.E.2d 128, citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 ). The plaintiff may stand on his or her pleading alone to state all the necessary elements of a cognizable cause of action, and, unless the motion to dismiss is converted by the court to a motion for summary judgment, the plaintiff will not be penalized because he or she has not made an evidentiary showing in support of the complaint (see Rovello v. Orofino Realty Co., 40 N.Y.2d at 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 ). In light...