Opinion
2017–06322 Index No. 605372/16
03-06-2019
Roger RAVIX, et al., Respondents, v. Immacula OLIGARIO, Appellant.
William D. Friedman, Hempstead, NY, for appellant. James J. Douglas, P.C., Garden City, NY, for respondents.
William D. Friedman, Hempstead, NY, for appellant.
James J. Douglas, P.C., Garden City, NY, for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The plaintiffs were residential tenants in a cottage house owned by the defendant. They allege that their personal property was destroyed in June 2015 when a defective plumbing system at the premises resulted in a flood. The defendant made a preanswer motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court denied the motion, and the defendant appeals.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "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" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). Although a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), the motion should not be granted unless it has been shown through this evidence "that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see Nilazra, Inc. v. Karakus, Inc., 136 A.D.3d 994, 995, 25 N.Y.S.3d 650 ).
To prevail on a motion to dismiss pursuant to CPLR 3211(a)(1), a defendant must demonstrate that the proffered documentary evidence " ‘utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( Old Republic Natl. Tit. Ins. Co. v. Junction Abstract, Inc., 150 A.D.3d 757, 758, 55 N.Y.S.3d 256, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Greenberg v. Spitzer, 155 A.D.3d 27, 44, 62 N.Y.S.3d 372 ).
A plaintiff may recover in negligence for damages to property when the defendant's failure to maintain real property in a reasonably safe condition proximately caused the plaintiff's damages (see Anzora v. 81 Saxon Ave. Corp., 146 A.D.3d 848, 849, 45 N.Y.S.3d 519 ; Downey v. Beatrice Epstein Family Partnership, L.P., 48 A.D.3d 616, 617, 853 N.Y.S.2d 108 ). Here, the complaint, viewed under the standard applicable to motions to dismiss under CPLR 3211(a)(7), sufficiently alleged that the defendant's failure to maintain the premises caused the flood that destroyed the plaintiffs' property (cf. Anzora v. 81 Saxon Ave. Corp., 146 A.D.3d at 849, 45 N.Y.S.3d 519 ). Moreover, we agree with the Supreme Court that the evidence submitted by the defendant in support of her motion to dismiss did not qualify as documentary evidence within the meaning of CPLR 3211(a)(1) (see Fontanetta v. John Doe 1, 73 A.D.3d 78, 84, 898 N.Y.S.2d 569 ). Accordingly, we agree with the court's denial of the defendant's motion to dismiss.
MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.