Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc.

• Decision Date: 26 November 2014
• Docket Number: 2014-00489
• Citation: 998 N.Y.S.2d 107,2014 N.Y. Slip Op. 08316,122 A.D.3d 901
• Parties: DOLPHIN HOLDINGS, LTD., appellant, v. GANDER & WHITE SHIPPING, INC., respondent.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 901

998 N.Y.S.2d 107

2014 N.Y. Slip Op. 08316

DOLPHIN HOLDINGS, LTD., appellant

v.GANDER & WHITE SHIPPING, INC., respondent.

2014-00489

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

Nov. 26, 2014.

McLaughlin & Stern, LLP, New York, N.Y. (Jon Paul Robbins and Peter R. Stern of counsel), for appellant.

Wade Clark Mulcahy, New York, N.Y. (Dennis M. Wade and Michael A. Bono of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for gross negligence, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Strauss, J.), entered October 22, 2013, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging gross negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging gross negligence is denied.

“On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences” (Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Carillo v. Stony Brook Univ., 119 A.D.3d 508, 508–509, 987 N.Y.S.2d 868 ). The court is limited to “an examination of the pleadings to determine whether they state a cause of action,” and 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 ). “The test of the sufficiency of a pleading is ‘whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments' ” (V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723, 964 N.Y.S.2d 563, quoting Pace v. Perk, 81 A.D.2d 444, 449, 440 N.Y.S.2d 710 [internal quotation marks omitted] ).

“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 ), and, if it does so, “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] ).

Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823, 595 N.Y.S.2d 381, 611 N.E.2d 282 ; see Goldstein v. Carnell Assoc., Inc., 74 A.D.3d 745, 746, 906 N.Y.S.2d 905 ). “To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others” (Ryan v. IM Kapco, Inc., 88 A.D.3d 682, 683, 930 N.Y.S.2d 627 [internal quotation marks and brackets omitted] ). “Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence” (id. at 683, 930 N.Y.S.2d 627 [internal quotation marks omitted]; see Goldstein v. Carnell Assoc., Inc., 74 A.D.3d at 747, 906 N.Y.S.2d 905 ). Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact (see Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172–173, 445 N.Y.S.2d 60, 429 N.E.2d 738 ).

Here, the amended complaint alleges that the plaintiff is a Liberian corporation in the business of owning an art collection and that the defendant is a New York corporation in the business of packing and transporting valuable works of art. On May 25, 2012, the defendant's employees allegedly damaged a work of art, worth more than $10 million, in the process of packing and moving the plaintiff...