SMUCKLER v. Long Island University, Appellant. (1997)

In an action to recover damages for personal injuries, etc., the defendant Long Island University appeals from an order of the Supreme Court, Kings County (Golden, J.), dated September 6, 1996, which denied its motion to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff Beth Smuckler, a student at Long Island University (hereinafter LIU), was injured when she slipped and fell on a walkway on the Mercy College campus while attending an LIU class held on that campus.   The plaintiffs alleged, inter alia, that both educational institutions operated colleges located on the campus and were responsible for maintenance of the premises.   LIU moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7) on the ground that documentary evidence established that it neither owned nor maintained the premises and therefore owed no duty of care to the injured plaintiff.

 The Supreme Court properly denied the motion.   The allegations in the complaint established a cognizable cause of action (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511) and, since the motion was not converted to a motion for summary judgment, the plaintiffs were not required to make an evidentiary showing in support of their complaint (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970).

 A complaint which is sufficient on its face may be dismissed if the factual claims are “flatly contradicted by documentary evidence” (Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, affd. 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748;  see, Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363), or if documentary evidence conclusively establishes a defense to the asserted claims (see, Leon v. Martinez, supra).   Although the documentary evidence submitted by LIU established that it did not own the property where the accident occurred, LIU failed to present documentary evidence which would conclusively establish that it had no control over or responsibility for maintenance of the common areas of the Mercy College campus.

MEMORANDUM BY THE COURT.