Opinion
31107/07.
Decided June 16, 2008.
Defendant NEXT GENERATION CHERA LLC (hereinafter Next Generation) and 460 FULTON OWNER LLC, jointly moves for an order dismissing the action and all cross claims against them pursuant to CPLR § 3211 (a)(1) and (7). Plaintiff opposes Next Generation's motion but does not oppose 460 FULTON OWNER LLC's motion.
PLEADINGS
On August 20, 2007, plaintiff commenced this action against defendants by filing a summons and verified complaint for personal injuries she sustained on May 27, 2006 when an air conditioner located inside 452-458 Fulton Street, Brooklyn, NY, fell and struck her (hereinafter the subject premise). Defendant Next Generation has not yet answered the complaint In lieu of answering the summons and complaint, defendant Next Generation and 460 Fulton Owner, LLC have submitted the instant motion to dismiss.
MOTION PAPERS
Defendant Next Generation's motion papers consists of an attorney's affirmation and six exhibits. Exhibit A is a copy of the summons and complaint. Exhibit B is a copy of the lease agreement for the premises. Exhibit C is a copy of the service agreement between Sprint/United Management Company and Metro Tech Service Corporation. Exhibit D is an affidavit from Haim Chera. Exhibit E is an affidavit of Brigham Henry Roberts. Exhibit E is an affidavit of Zaid Williams.
Plaintiff's affirmation in opposition consists of one exhibit. Exhibit 1 is an affidavit of the plaintiff, Shinise Benjamin.
Defendant Next Generation and 460 Fulton Owner LLC submitted a reply affirmation.
LAW AND APPLICATION
"The main mission of an affirmative pleading such as a complaint is to give "notice" of the event out of which the grievance arises. If the pleading can be said to give that notice, the first pleading requirement is satisfied. If the allegations also cover the substantive material elements that make up the particular cause of action relied on, the second requirement is met and the pleading satisfies the CPLR. The major challenge to an affirmative pleading is a motion under CPLR 3211(a)(7) to dismiss it for failure to state a cause of action; a pleading that meets the two stated requirements defeats that motion" (see, Siegel, NY Prac. § 208 [4th ed].)
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Clement v Delaney Realty Corp., 45 AD3d 519 [2nd Dept 2007]). Whether the plaintiffs can ultimately establish their allegations is not part of the calculus in determining a motion to dismiss ( EBCI, Inc. v Goldman, Sachs, Co. , 5 NY3d 11 , 19).
Under CPLR 3211(a)(1) a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law ( Clement v Delaney Realty Corp., supra, 45 AD3d 519). In assessing a motion under CPLR 3211(a)(7) however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint. The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (see Roth v. Goldman, 254 AD2d 405 [2nd Dept 1998] citing Leon v. Martinez, 84 NY2d 83, 87-88).
Applying this standard, the plaintiff's complaint, together with her affidavit, establish cognizable causes of action for negligence against Next Generation. In support of its motion, Next Generation submitted a signed lease between itself and Sprint Spectrum LP, an unsigned service agreement between Sprint/United Management Company and Metro Tech Service Corporation, and three affidavits. Next Generation contends their documentary evidence establishes that it had no duty to the plaintiff in maintaining the safety of the subject premise or in contracting the work on the air conditioner that fell and injured the plaintiff. .
Although the lease and the service agreement can be considered as documentary evidence for the purpose of a pre-answer motion to dismiss the complaint, the affidavits cannot (see Fleming v Kamden Properties , 41 AD3d 781 [2nd Dept 2007]). It cannot be conclusively determined with the lease and service agreement alone, that Next Generation had no obligations with regard to the maintenance and safety of the subject premises. Moreover, the two documents do not flatly contradict or conclusively dispose of the plaintiff's claim ( Yew Prospect, LLC v. Szulman, 305 AD2d 588 [2nd Dept 2003]).
In particular Next Generation contends that the lease demonstrates that Sprint is the tenant of the premise in which plaintiff was injured, that Next Generation is an out of possession landlord, and that it had no responsibility to repair or maintain the premises. The lease, however, gives the landlord the right to make necessary repairs, maintenance or alterations in the leased premises that it deems required. The service agreement is unsigned and is by Sprint/ United Management not Sprint Spectrum LLC. The agreement appear to be a template with no indication of what premises are covered by the agreement. At this stage, it has no probative value. The court concludes that the documentary evidence submitted by the defendant does not conclusively establish a defense to plaintiff's asserted claims as a matter of law.
Defendant Next Generation's motion to dismiss is denied.
The foregoing constitutes the decision and order of the court and is to be entered forthwith.