Opinion
Index No. 159156/2021 Motion Seq. No. 002
12-19-2022
ERICKA CROWE, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY HOUSING AUTHORITY Defendants.
Unpublished Opinion
MOTION DATE 07/09/2022
PRESENT: HON. J. MACHELLE SWEETING Justice
DECISION + ORDER ON MOTION
J. MACHELLE SWEETING, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 were read on this motion to/for REARGUMENT/RECONSIDERATION .
In the underlying action, plaintiff alleges that she was injured on March 11, 2021, while inside her apartment located at 2453 Adam Clayton Powell Jr. Blvd, Apt 3B in New York County when her bathroom ceiling collapsed on her while she was showering.
In a Decision and Order, dated (NYSCEF Document #32), the undersigned denied the City's motion to dismiss, (Motion #001), as premature on the grounds that a preliminary conference had not yet been held, and no depositions had yet taken place.
Now pending before the court is Motion Sequence #002 in which defendant The City Of New York (the "City") seeks an order: (1) pursuant to CPLR 2221 granting leave to reargue the City's motion to dismiss; and (2) pursuant to CPLR 3211(a)(1) and (a)(7), granting dismissal of the complaint and any cross-claims in favor of the City.
The City argues that the court misapprehended the applicable law, as the City's prior motion was made pursuant to CPLR 3211, and not pursuant to CPLR 3212. The City argues that its motion was not premature because, pursuant to CPLR 3211, a motion to dismiss can be made at any time, including prior to discovery. The City argues that for a motion made under CPLR 3211, the sufficiency of a pleading is not determined at a preliminary conference, or through depositions or other forms of discovery, and in fact the analysis for such motion requires only an examination of the four corners of the complaint itself and consideration of other material that may be submitted to show the absence of any factual basis for the claim. The City argues that no amount of discovery or testimony can rebut the undisputed evidence that the City does not own the subject property.
NYCHA did not oppose this motion, and the only opposition was filed by plaintiff. In her opposition, plaintiff argues that she had filed a request for a preliminary conference to commence discovery on January 27, 2022, and that as of now, no preliminary conference has been held and discovery has not yet commenced. Plaintiff further argues:
NYCHA did not oppose Motion Sequence #001.
7. Your affiant maintains that she should have the right to conduct depositions to determine the duties and responsibilities between the Defendant CITY OF NEW YORK and the Defendant NEW YORK CITY HOUSING AUTHORITY at the time of the subject occurrence. Dismissing the Defendant CITY from this case at such an early junction could prove very detrimental to the Plaintiff. Moreover, in a Preliminary Conference Order, the Defendant CITY would be required to produce certain records, permits, repair orders, etc. which would identify the parties involved in this case. If the Defendant CITY is removed from this case at this time, the Plaintiff loses the opportunity to receive and review those important records.
Conclusions of Law
To prevail on motion to dismiss, pursuant to CPLR 3211 (a)(1), a defendant must provide documentary evidence that refutes plaintiff's factual allegations. Defendant's evidence must also conclusively establish a defense to the asserted claims as a matter of law. Under CPLR 3211 (a)(7), the question is whether the pleading states a cause of action and if, from its four corners, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law. The court must construe the pleading liberally, accepting its factual allegations as true and affording the benefit of every possible inference to the plaintiff (see 12 E. 88th LLC v Fox, 72 Misc.3d 1221[A] [Sup Ct., NY Cnty. 2021]).
The City argues that the determination of a motion made pursuant to CPLR 3211 does not require any discovery to proceed. While the City contends that a motion made under CPLR 3211 cannot be premature based on the lack of discovery, this is contrary to the law. CPLR 3211(d) states, in part:
Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just [emphasis added].
See also Bd. of Managers of 255 Hudson Condominium v Hudson St. Assoc., LLC, 37 Misc.3d 1223(A) (Sup Ct., NY Cnty. 2012) ("Pursuant to CPLR §3211[d] a motion to dismiss may be denied for discovery, if there are facts essential to justify opposition that may exist but cannot be stated"); Meyers v Becker &Poliakoff, LLP, 202 A.D.3d 627 (1st Dept 2022):
Order, Supreme Court, New York County [...], entered on or about August 10, 2020, which, to the extent appealed from as limited by the briefs, denied defendant's CPLR 3211(a)(7) motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying defendant's motion to dismiss the complaint on the ground that it was premature, and correctly concluded that discovery was needed to resolve the issues presented.
[.]
The court denied defendant's motion as premature, after discussing the motion at a preliminary conference and concluding that discovery was needed [.] the court did not inappropriately conclude that further findings were unnecessary or impossible until discovery occurred. The record supports the court's conclusion that defendant was not entitled to pre-discovery dismissal.
Here, in the City's Answer, (which NYCHA does not dispute), the City contends that:
4. [. NYCHA] admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the premises located at 2453 Adam Clayton Powel Jr. Boulevard, New York, New York and operates and maintains those portions used in common by all persons lawfully thereat [.].
[.]
10. [. NYCHA] admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the premises located at 2453 Adam Clayton Powel Jr. Boulevard, New York, New York and operates and maintains those portions used in common by all persons lawfully thereat [.].
Notably, here, NYCHA does not contest the City's assertions, and NYCHA did not file any cross-claims against the City.
Accordingly, it is hereby
ORDERED that the City's motion is GRANTED; and it is further
ORDERED that the complaint is dismissed as against the City with prejudice; and it is further
ORDERED that the caption is amended as to remove the City; and it is further
ORDERED that this action is randomly reassigned to a General IAS part; and it is further
ORDERED that counsel for the City shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctmanh).