Rodriguez v. County of Rockland
| Decision Date | 18 September 2007 |
| Docket Number | 2006-00834. |
| Citation | 43 A.D.3d 1026,2007 NY Slip Op 06855,842 N.Y.S.2d 488 |
| Parties | ORLANDO RODRIGUEZ et al., Appellants, v. COUNTY OF ROCKLAND et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order, as amended, is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff Orlando Rodriguez (hereinafter Rodriguez), a State Patrol Trooper assigned as an undercover police officer, was assaulted by the defendant Isaiah Eurie when Rodriguez was purchasing narcotics as part of a joint task force. Rodriguez, with his wife, the plaintiff Luz D. Rodriguez, suing derivatively, commenced this action to recover damages for injuries he purportedly sustained as a result of the assault. The complaint alleged, inter alia, that various defendants failed to warn Rodriguez that Eurie had been released from jail on bail. The complaint further alleged that when Rodriguez attempted to purchase narcotics as part of his continuing undercover duties, Eurie recognized him as an undercover officer and assaulted him.
In a pre-answer motion pursuant to CPLR 3211 (a) (7), the defendant Village of Haverstraw moved to dismiss the complaint insofar as asserted against it on the ground, inter alia, that the complaint failed to plead a violation of General Obligations Law § 11-106. The defendants County of Rockland and Rockland County Sheriff's Department (hereinafter collectively the County), without serving a notice of motion or cross motion, submitted an affirmation seeking the same relief and adopting and incorporating the Village's submissions. The plaintiffs opposed both applications and cross-moved for leave to amend their complaint to allege a violation of General Obligations Law § 11-106. The Supreme Court granted the Village's motion to dismiss the complaint as asserted against it and denied the plaintiffs's cross motion. The court then amended its prior order to include relief granting dismissal of the complaint against the County. The plaintiff appeals. We now affirm the order as amended.
Although the County failed to include a notice of motion or cross motion with its submissions, under the circumstances presented here, the Supreme Court properly entertained its application (see Tulley v Straus, 265 AD2d 399 [1999]; Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn., 178 AD2d 871 [1991]; Catania v Lippman, 98 AD2d 826 [1983]; cf. Hergerton v Hergerton, 235 AD2d 395 [1997]). The County's argument for dismissal was premised on the same legal argument as the Village's motion to dismiss, which the County adopted and incorporated by reference. Further, the plaintiffs obviously had notice of the County's submissions since they are referenced in the plaintiffs' response.
As to the merits, on a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must accept the complaint's allegations as true, "according the plaintiff the benefit of every favorable inference, and determining only whether the facts alleged `fit within any cognizable legal theory'" (Rodriguez v City of New York, 35 AD3d 702, 703-704 [2006], quoting Sokoloff v Harriman Estates Dev....
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