BRATHWAITE v. EUBANKS (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated January 6, 2023.  The order denied the defendant's motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant to recover damages for personal injuries he alleged that he sustained in November 2018, when he fell down the front steps of a building owned by the defendant.  The defendant moved, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint.  The plaintiff opposed.  In an order dated January 6, 2023, the Supreme Court denied the defendant's motion.  The defendant appeals.  We affirm.

Generally, on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Xia–Ping Wang v. Diamond Hill Realty, LLC, 116 A.D.3d 767, 768, 984 N.Y.S.2d 76 [internal quotation marks omitted];  see Yu Chen v. Kupoint (USA) Corp., 160 A.D.3d 787, 788, 71 N.Y.S.3d 376).  In assessing a motion under CPLR 3211(a)(7), a court may consider supplemental pleadings, affidavits, or other evidence submitted by the plaintiff to remedy any defects in the complaint (see Yu Chen v. Kupoint (USA) Corp., 160 A.D.3d at 788, 71 N.Y.S.3d 376).

When evidentiary material is submitted in support of a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Xia–Ping Wang v. Diamond Hill Realty, LLC, 116 A.D.3d at 768, 984 N.Y.S.2d 76;  Nunez v. Mohamed, 104 A.D.3d 921, 922, 962 N.Y.S.2d 338).  However, the motion must be denied “unless it has been shown that a material fact as claimed by the [pleader] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Xia–Ping Wang v. Diamond Hill Realty, LLC, 116 A.D.3d at 768, 984 N.Y.S.2d 76 [internal quotation marks omitted]).

Here, the plaintiff asserted a cognizable cause of action to recover damages for common-law negligence (see Torres v. City of New York, 153 A.D.3d 647, 649, 60 N.Y.S.3d 248;  Phillips v. Taco Bell Corp., 152 A.D.3d 806, 808, 60 N.Y.S.3d 67).  The plaintiff alleged, inter alia, the existence of a defect, that the defendant had actual or constructive notice of that defect, that it existed for a sufficient amount of time for the defendant to remedy it, and that the defect was the proximate cause of his fall (see Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 764, 142 N.Y.S.3d 92).

Contrary to the defendant's contentions, the records she submitted were insufficient to establish that “a material fact as claimed by the pleader to be one is not a fact at all” and 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 Phillips v. Taco Bell Corp., 152 A.D.3d at 808, 60 N.Y.S.3d 67).  Although the records submitted revealed that a violation had not been issued with respect to the front steps, the “absence of a violation of a specific code or ordinance is not dispositive of a plaintiff's allegations based on common-law negligence principles” (Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d at 764, 142 N.Y.S.3d 92 [internal quotation marks omitted];  see Cabanas v. Qiu Yu Zou, 215 A.D.3d 726, 728–729, 187 N.Y.S.3d 708).

The parties’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendant's motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint.

DUFFY, J.P., WOOTEN, WARHIT and TAYLOR, JJ., concur.