Opinion
2001-06448
Submitted May 29, 2002
August 19, 2002.
In an action to recover damages for personal injuries, the defendant Incorporated Village of Lindenhurst appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated May 23, 2001, as denied that branch of its motion which was to dismiss the complaint and all cross claims insofar as asserted against it, and the defendant Town of Babylon cross-appeals from the same order.
McCabe, Collins, McGeough Fowler, LLP, Mineola, N.Y. (Joseph Tipaldo of counsel), for appellant-respondent.
Doniger Engstrand, LLP, Islandia, N.Y. (D. Daniel Engstrand, Jr., of counsel), for plaintiff-respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8[c],[e]); and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the motion of the Incorporated Village of Lindenhurst which was to dismiss the complaint and all cross claims insofar as asserted against it is granted, the complaint and all cross claims are dismissed insofar as asserted against that defendant, and the action against the remaining defendants is severed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Incorporated Village of Lindenhurst.
The Supreme Court should have granted that branch of the motion of the Incorporated Village of Lindenhurst (hereinafter the Village) which was to dismiss the complaint and all cross claims insofar as asserted against it for failure to state a cause of action (see CPLR 3211[a][7]; Smuckler v. Mercy College, 244 A.D.2d 329; Doria v. Masucci, 230 A.D.2d 764). Where the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Leon v. Martinez, 84 N.Y.2d 83, 87-88; Steiner v. Lazzaro Gregory, P.C., 271 A.D.2d 596; Roth v. Goldman, 254 A.D.2d 405, 406). In this case, the Village submitted evidentiary material establishing that it did not control, maintain, or repair the area where the accident occurred, and that the accident site was outside the Village's boundaries. Accordingly, the complaint and all cross claims are dismissed insofar as asserted against the Village.
SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.