Martin v. New York Hospital Medical Center of Queens

• Decision Date: 21 November 2006
• Docket Number: 2006-02870.
• Parties: ROBERTA MARTIN, Respondent, v. NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, Appellant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 650

826 N.Y.S.2d 85

2006 NY Slip Op 08747

ROBERTA MARTIN, Respondent, v. NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, Appellant.

2006-02870.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 21, 2006.

In an action, inter alia, to enjoin the defendant from interfering with the plaintiff's continued use of an easement, the defendant appeals from an order of the Supreme Court, Queens County (Nelson, J.), dated January 26, 2006, which denied its motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly denied that branch of the defendant's motion which was to dismiss the complaint on the ground that a defense is founded upon documentary evidence (see CPLR 3211 [a] [1]). "`To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" (M. Fund, Inc. v Carter, 31 AD3d 620 [2006], quoting Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). The documentary evidence submitted by the defendant, namely the parties' agreement dated June 18, 2003, failed to resolve all factual issues as a matter of law and to conclusively dispose of the plaintiff's claim. This agreement did not establish that the plaintiff consented to the installation of the subject railing.

Moreover, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]). In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, supra at 87-88; Lupski v County of Nassau, 32 AD3d 997 [2006]; Richmond Shop Smart, Inc. v Kenbar Dev. Ctr., LLC, 32 AD3d 423 [2006]; Simmons v Edelstein, 32 AD3d 464 [2006]). In this regard, "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, supra at 88). "`To acquire an easement by...