Opinion
Index 605087/18
03-29-2019
ESTER DILMANIAN, Plaintiff, v. RACHEL ZAR, KOROSH ZAR, INTERNATIONAL DESIGN & MEG LLC, SUSSAN LARI ARCHITECT PC and VILLADOM CORP., Defendant. INTERNATIONAL DESIGN & MFG, LLC, Third Party Plaintiff, v. SUSSAN LARI ARCHITECT PC and VILLADOM, Third Party Defendant. Motion Sequence No. 001
Antonio I. Brandveen, J. S. C.
Unpublished Opinion
SHORT FORM ORDER
Antonio I. Brandveen, J. S. C.
The following papers having been read on this motion:
Notice of Motion, Affidavits, & Exhibits............... 1
Answering Affidavits.......................... 2, 3, 4, 5
Replying Affidavits...................................6
Briefs: Plaintiffs / Petitioner's ......................
Defendant's /Respondent's.....................................7
Upon the foregoing papers, the motion by defendant Sussan Lari Architect PC ("Architect") for an order pursuant to CPLR §§ 3211 (a) (1) and (7), dismissing the complaint and all cross claims against it, is denied. The alternative relief sought by defendant Architect to convert the motion into a motion for summary judgment pursuant to CPLR 3211 (c) is also denied. However, the movant may make a motion for summary judgment after the completion of discovery if it is so advised.
This is an action to recover damages for the personal injuries allegedly sustained by the plaintiff on September 9, 2017, while attempting to go down a staircase in the home of defendants Zar. The plaintiff contends inter alia that her injuries were caused by the design of the staircase by defendant Architect, as well as the handrail and gate around the staircase.
"In considering a motion to dismiss a complaint or counterclaims pursuant to CPLR 3211(a)(1) based on documentary evidence, dismissal is warranted 'only where the documentary evidence utterly refutes [the] factual allegations, conclusively establishing a defense as a matter of law' (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 774 N.E.2d 1190, 746 N.Y.S.2d 858; see Sabre Real Estate Group, LLC v Ghazvini, 140 A.D.3d 724, 35 N.Y.S.3d 109)" (Wynkoop v 622A President St. Owners Corp., ___A.D.3d___, 2019 NY Slip Op 01450 [2d Dept Feb 27, 2019]).
"'On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (Garcia v Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 829, 77 N.Y.S.3d 424 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326; Leon v Martinez, 84 N.Y.2d 83, 87-88)" First Class Concrete Corp. v Rosenblum, 167 A.D.3d 989, 989 [2d Dept 2019]. "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)" (Gugliotta v. Wilson, 168 A.D.3d 817, 818, 92 N.Y.S.3d 309 [2d Dept 2019], quoting Sokol v Leader, 74 A.D.3d 1180, 1181 [2d Dept 2010]). "Where evidentiary material is submitted and considered, and the motion is not converted into a motion for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and it cannot be said that a significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; Rodriguez v Daily News, L.P., 142 A.D.3d 1062, 1063; Steve Elliot, LLC v Teplitsky, 59 A.D.3d 523, 524 [2d Dept 2009])" (Stone v. Bloomberg L.P., 163 A.D.3d 1028, 1030 [2d Dept 2018]).
In applying these principles to the motion at bar, the Court finds that defendant Architect has failed to sufficiently demonstrate by documentary evidence its entitlement to dismissal of the complaint and cross-claims pursuant to CPLR 3211 (a) (1) (see, Leon v. Martinez, supra at 87-88), that the complaint adequately states, and the plaintiff has, a cause of action sounding in negligence against defendant Architect (see, Miglino v. Bally Total Fitness of Greater N. Y., Inc., 20 N.Y.3d 342 [2015]; Rovello v. Orofino Co., 40 N.Y.2d 633 [1976]), and that the co-defendants have adequately asserted cross-claims for indemnification against defendant Architect.
The parties shall appear for a preliminary conference to schedule all discovery on April 25, 2019, at 10 a.m. A copy of this order shall be served by the plaintiff on the Preliminary Conference Clerk.
The foregoing constitutes the decision and order of this Court.