Leader v. Steinway, Inc., 2017–07246

• Decision Date: 19 February 2020
• Docket Number: Index No. 6433/16,2017–07246
• Citation: 119 N.Y.S.3d 516,180 A.D.3d 886
• Parties: Mervin T. LEADER, etc., Appellant, v. STEINWAY, INC., et al., Defendants, Domenico Pinto, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 886

119 N.Y.S.3d 516

Mervin T. LEADER, etc., Appellant,

v. STEINWAY, INC., et al., Defendants,Domenico Pinto, et al., Respondents.

2017–07246

Index No. 6433/16

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

Argued—October 4, 2019

February 19, 2020

G. Wesley Simpson, P.C., Brooklyn, NY, for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Michael J. Marone and Brian L. Battisti of counsel), for respondents.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), entered April 25, 2017. The order, insofar as appealed from, granted those branches of the motion of the defendants Domenico Pinto and Maria Pinto which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants Domenico Pinto and Maria Pinto which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action insofar as asserted against them are denied.

The plaintiff, the administrator of the decedent's estate, commenced this action, inter alia, to recover damages for pre-impact terror and conscious pain and suffering. The plaintiff alleged that the driver of the vehicle in which the decedent was riding attempted to make a U-turn at the dead end of 19th Avenue, near 37th Street, in Queens. However, as the result of a missing section of guardrail, the vehicle slid forward and plunged into Steinway Creek/Luyster Creek and the decedent and the other occupants of the vehicle died. According to the plaintiff, the defendants Domenico Pinto and Maria Pinto (hereinafter together the defendants) made special use of the area where the accident occurred, and this special use caused or contributed to the collapse of the guardrail.

As is relevant to the appeal, the defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action, which sought to recover damages for pre-impact terror and conscious pain and suffering, respectively, insofar as asserted against them. In support of the motion, the defendants submitted, inter alia, the affidavit of the defendant Domenico Pinto, a New York City Digital Tax Map for the subject area, and an easement agreement filed and recorded with the Office of the City Register. By order entered April 25, 2017, the Supreme Court granted those branches of the defendants' motion, and the plaintiff appeals.

Contrary to the defendants' contention, there was no basis to dismiss, pursuant to CPLR 3211(a)(1), the causes of action to recover damages for pre-impact terror and conscious pain and suffering insofar as asserted against them. A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 ; see Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted]; see First Choice Plumbing Corp. v. Miller Law Off., PLLC, 164 A.D.3d 756, 758, 84 N.Y.S.3d 171 ). Here, the affidavit of the defendant Domenico Pinto does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668 ; Fontanetta v. John Doe 1, 73 A.D.3d at 85, 898 N.Y.S.2d 569 ...