BRITTON v. STARRETT CORPORATION (2018)

The following papers numbered 1 to _5_ Read on this motion, _DISMISSAL

Noticed on November 17, 2017 and duly submitted on the Motion Calendar of November 17, 2017:

PAPERS NUMBERED

Notice of Motion–Exhibits and Affidavits Annexed 1,2

Answering Affidavit and Exhibits 3,4

Reply Affidavit and Exhibits 5

Upon the foregoing papers, the defendants Starrett Corporation, Starrett City Management, and Grenadier Realty Corp., and Grenadier Realty Management, LLC. (collectively, “Defendants”) move to dismiss the complaint of the plaintiff Jose Britton (“Plaintiff”) pursuant to CPLR 3211(a)(7), and for the imposition of legal fees, costs, and sanctions pursuant to CPLR 8303–a and Uniform Rules of Court § 130–1.1. Plaintiff opposes the motion.

On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 [1st Dept. 2002] ). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205 [1st Dept. 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true] ). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026). 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 into any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994] ). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 A.D.2d 98 [1st Dept. 1992] ).

The elements of a common-law negligence claim are (1) a duty owed by the defendant to plaintiff, (2) a breach of that duty, and (3) an injury proximately resulting there from (see Jimenez v. Shalid, 83 AD3d 900 [2nd Dept. 2011] ). To impose liability upon a landowner in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition (Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 [1994] ). In this matter, Plaintiff's complaint alleges that he was struck by a motor vehicle while he was on the sidewalk of the driveway in front of defendants' premises, and this occurrence was caused by the defendants' “ownership, operation, management, supervision, maintenance, construction, and control of the aforesaid premises” (Complaint at Par. 40–43). The complaint goes on to claim that these defendants were “negligent in the operation, management, supervision, maintenance, construction and control and maintenance of the premises and driveway and sidewalk thereat” (id. at 44–47). These contentions do not “sufficiently allege any valid basis for the imposition of a duty of care․ to safeguard against the risk that a car would mount the sidewalk and strike a pedestrian” (see Jimenez v. Shahid, 83 AD3d at 901). Defendants' are thus entitled to dismissal of the complaint, even without considering the additional assertions that defendants Starett Corporation had no involvement with this property and that defendants Starrett City Management and Grenadier Realty Management are non-entities. The police accident report submitted in opposition only indicates that plaintiff was struck by a motor vehicle that mounted the curb in front of the building and the driver thereafter exited the vehicle and fled on foot. The photographs of the front of the building depicting bollards on the sidewalk, without an accompanying affidavit, fail to remedy the defects in Plaintiff's pleading (see generally Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 635–636 [1976] ). Accordingly, Defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7) is granted.

Defendants' request for legal fees, costs, and sanctions is denied.

This constitutes the Decision and Order of this Court.

Mary Ann Brigantti, J.