FLOREZ v. MAINTENANCE (2024)

I. Recitation of the papers considered in the review of this Motion as required by CPLR 2219(a)

Upon reading Defendant's Motion to Dismiss (“Motion”), Plaintiff's Affirmation in Opposition (“Opposition”), and Defendant's Reply (“Reply”), together with all supporting documents, Defendant's Motion is decided as follows.

II. Background

On August 20, 2024, pro se Plaintiff commenced the instant action seeking money damages in the amount of $25,800 with interest from July 1, 2024, alleging a failure to provide repairs and proper services to an apartment, where Plaintiff currently resides as a tenant. Defendant moved to dismiss the action on September 19, 2024 pursuant to CPLR 3211(a)(1) and (7) on the grounds that Plaintiff's complaint failed to state a cause of action and name a necessary party to the action. Plaintiff filed her pro se Opposition on October 24, 2024, which was supplemented by Plaintiff's affidavit and photographs of Plaintiff's apartment. Defendant filed a reply on October 31, 2024. Motion was submitted on October 31, 2024 and was subsequently assigned to this Court for a determination.

III. Discussion

In our instant matter, Defendant moved to dismiss Plaintiff's complaint pursuant to CPLR 3211(a)(1) and (7), contending that Plaintiff's complaint failed to state a cause of action and name a necessary party.

Pursuant to CPLR 3211(a)(7), a defendant may move for judgment to dismiss on the ground that plaintiff's pleading “fails to state a cause of action” (CPLR 3211[a][7]). In determining whether a plaintiff has adequately stated a cause of action, the court must construe the pleadings liberally and “accept the facts as alleged as true, [and] accord plaintiffs the benefit of every possible favorable inference” (see Leon v Martinez, 84 NY2d 83, 87-88 [1994], Avgush v Town of Yorktown, 303 AD2d 340, 341, 755 N.Y.S.2d 647 [2nd Dept 2003]). However, a pleading that is “plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts” is not afforded this liberal construction (see Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]; see also Landmark Ventures, Inc., v InSightec, Ltd., 179 AD3d 493, 117 N.Y.S.3d 204 [1st Dept 2020]).

A motion to dismiss pursuant to CPLR 3211(a)(1) permits a party to move for dismissal on the ground that “a defense is founded upon documentary evidence” (CPLR 3211[a][1]). Such motion may be granted only “where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (see Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 774 N.E.2d 1190, 746 N.Y.S.2d 858 [2002]; McCully v Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept 2009]; Art and Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

While there is “a paucity of case law” as to what is considered “documentary” under CPLR 3211(a)(1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86, 898, NYS2d 569 [2nd Dept 2010], citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22), it is well established that for evidence to be considered “documentary”, the authenticity of the evidence must be “undisputed” and its content “essentially undeniable” (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014]; DSA Realty Servs., LLC v Marcus & Millichap Real Estate Inv. Servs. Of NY Inc., 128 AD3d 587 [1st Dept 2015]). In general, “judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence” (see Fontanetta v John Doe 1, 73 AD3d 78, 86, 898, NYS2d 569 [2nd Dept 2010]).

Plaintiff alleged that her cause of action was for “failure to provide repairs” and “failure to provide proper service”. According to Plaintiff's complaint, Defendant had “[come] to repair a pipe from a tenant downstairs and left [her] repairs undone repaired it wrong and ignored [her]”. In the Opposition, Plaintiff stated that “[Maintenance] Supervisor Shakib” was “rude” when Plaintiff cancelled an appointment, Mr. Shakib “spoke to [her] like trash”, and Mr. Shakib “[made] other [maintenance] workers against [her] by treating [her] mean” (see Opposition). It appeared that Plaintiff's cause of action rested on Defendant's alleged breach of the terms of a residential lease, in failing to provide repairs and services to Plaintiff's apartment. Plaintiff here has failed to state a cognizable cause of action in relation to maintenance supervisor Shakib (see MatlinPatterson ATA Holdings LLC v Fed. Express Corp., 87 AD3d 836, 839 [1st Dept 2011]).

In its Motion, Defendant submitted certified ownership documents from ACRIS for the building located at 484 West 43rd Street, New York, New York, based upon Plaintiff's address listed in the complaint (see Defendant's Exhibit B). These documents constituted documentary evidence within the intendment of CPLR 3211(a)(1), as the documents provided are “undisputed” and their content “essentially undeniable” (see Amsterdam Hospitality Group, LLC, 120 AD3d 431 [1st Dept 2014]; DSA Realty Servs., LLC, 128 AD3d 587 [1st Dept 2015]). “When documentary evidence is submitted by a defendant the standard [changes] from whether the plaintiff has stated a cause of action to whether it has one” (see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 135, 980 N.Y.S.2d 21 [1st Dept 2014] [internal quotation marks and citations omitted]). It can be discerned from the documents that Defendant, Manhattan Plaza Maintenance, is not the owner, landlord or lessor with respect to Plaintiff, as they identify M PLAZA L.P. as the owner. Plaintiff's cause of action failed as there was no contractual relationship between Plaintiff and Defendant. Here, Defendant has “resolve[d] all factual issues as a matter of law, and conclusively dispose[d] of the plaintiff's claim” (see Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 AD2d 383 [1st Dept 2002] internal quotations and citations omitted). Plaintiff's complaint is dismissed pursuant to CPLR 3211(a)(1) and (7).

IV. Order

Accordingly, it is

ORDERED that Defendant's Motion to dismiss Plaintiff's Complaint is GRANTED; and it is further

ORDERED that Plaintiff's Complaint is DISMISSED without prejudice and the clerk is directed to dispose of the index number for all purposes.

This constitutes the DECISION and ORDER of this Court.

Wendy Changyong Li, J.