Rojas v. Family Dollar Stores of N.Y., Inc.

• Decision Date: 23 January 2023
• Docket Number: Index No. 158229/2021,Motion Seq. No. 001
• Citation: 2023 NY Slip Op 30270 (U)
• Parties: CHRISTINA ROJAS, Plaintiff, v. FAMILY DOLLAR STORES OF NEW YORK, INC., DOLLAR TREE STORES, INC. Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 30270(U)

CHRISTINA ROJAS, Plaintiff,
v.
FAMILY DOLLAR STORES OF NEW YORK, INC., DOLLAR TREE STORES, INC. Defendant.

Index No. 158229/2021, Motion Seq. No. 001

Supreme Court, New York County

January 23, 2023

Unpublished Opinion

MOTION DATE 06/06/2022

DECISION+ ORDER ON MOTION

HON. MARY V. ROSADO, Justice

The following e-filed documents,, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15,16,17,18,19,20,21,22 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, and after oral argument on November 22, 2022, where Gregory S. Newman, Esq, appeared on behalf of Plaintiff Christina Rojas ("Plaintiff') and Alex Ru, Esq. appeared on behalf of Defendants Family Dollar Stores of New York, Inc., and Dollar Tree Stores, Inc. (collectively "Defendants"), Defendants' motion to dismiss is denied.

I. Factual and Procedural Background

Plaintiff initiated this action by filing her summons and complaint on September 3, 2021 (NYSCEF Doc. 1). Plaintiff alleges she was injured on July 8, 2020 when she allegedly tripped and fell over boxes or some other dangerous condition on the floor of premises owned and controlled by Defendants (id. at ¶ 27). On September 28, 2021, Defendants filed their Answer which included eighteen affirmative defenses, including accord and satisfaction (NYSCEF Doc. 6). On May 17, 2022, Defendants filed the instant motion to dismiss (NYSCEF Doc. 9). Defendants seek dismissal pursuant to CPLR §§ 3211(a)() and (a)(5), as well as accord and satisfaction.

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The basis for Defendants' motion to dismiss is a check made to Plaintiff which Defendants assert constituted a release of' any and all claims' Plaintiff may have against Defendants (NYSCEF Doc. 11 at ¶ 6). Defendants attach in support to their mot on an affidavit from Rina Rochette ("Rochette"), a claims examiner for Sedgwick Claims Management Services, Inc. (NYSCEF Doc. 10). Rochette alleges that Sedgwick manages claims of personal injury on behalf of the Defendants (id. at ¶ 2). Rochette alleges that on July 10, 2020, Defendants reported Plaintiffs alleged claim to Sedgwick (id. at ¶ 3). On July 23, 2020, Rochette alleges that Plaintiff negotiated and accepted $750.00 as a release of "any and all claims" (id. at ¶ 6). Rochette claims the settlement check was sent with an attached payment stub which contained the terms of the release (id. at ¶ 7).

The payment stub lists Plaintiffs name and a loss date of July 8, 2020 (NYSCEF Doc. 13). It states that the amount paid was $750.00 for dates July 8, 2020, through July 23, 2020 (id.}. The payment stub has a description which states "Settlement of all claims", and beneath is a comment which states "full final payment for any all claims [sic]" (id;) The check attached to the payment stub states it is being paid on behalf of Family Dollar Stores, Inc. by Sedgwick Claims Management Services, Inc. (id.). Plaintiff admits she received and the check and payment stub and deposited the check (NYSCEF Doc. 15). In opposition, Plaintiff submitted her own affidavit (NYSCEF Doc. 20). Plaintiff states she discussed her incident with Defendants with an individual named "Rick", who repeatedly called her from an unknown number (id. at ¶ 4-5). Plaintiff alleges she told Rick she was going to hire a lawyer and that she and Rick discussed reimbursement for hospital and transportation costs she incurred on the date of her accident (id. at ¶ 5). Plaintiff|i claims that based on her telephone conversation, she believed that she was being reimbursed for her hospital and travel expenses (id. at ¶ 6). Plaintiff asserts that Defendants' interpretation of the check is inaccurate and that she did

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not sign any release regarding her personal injury claims against Defendants (id. at ¶ 8). Plaintiff claims that given the severity of her injuries, she would not accept $750 as compensation for her injuries, future medical expenses, and time away from work (id. at ¶ 5). Plaintiff also opposes the motion by arguing that as Rochette never spoke with Plaintiff she does not have first-hand knowledge of Plaintiff s claims or the check (NYSCEF Doc. 18 at ¶ 6). Plaintiff also argues the check and few words on the payment stub are too vague and ambiguous to constitute a binding release that bars Plaintiffs lawsuit.

II. Discussion A. Standard

A motion to dismiss based on documentary evidence pursuant to CPLR § 3211(a)(1) is appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co. of New York, 98 N.Y.2d 314 [2002]). The documentary evidence must be unambiguous, of undisputed authenticity, and its contents must be essentially undeniable (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint based on documentary evidence unless the factual allegations are definitively contradicted by the evidence (Leon v Martinez, 84 N.Y.2d 83, 88 [1994]).

In assessing a motion to dismiss on the ground that an action may not be maintained because of a release, the allegations in the complaint are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in the plaintiffs favor, and where the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light. At the same time, however, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration, (see

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CPLR § 3211(a) (5); see also Putnam v Kibler, 210 A.D.3d 1458, 1459-1460 [4th Dept 2022] citing Sachetti-Virga v Bonilla, 158 A.D.3d 783, 784 [2d Dept 2018]).

A motion to dismiss based on accord and satisfaction or release pursuant to CPLR § 3211(a)(5) requires a clear...