KAWIK v. City of New York, respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), dated January 10, 2025.  The order granted the motion of the defendant City of New York pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant City of New York pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it is denied.

The plaintiff allegedly tripped and fell on a defective walkway condition in the parking lot for employees of American Airlines, Inc., at John F. Kennedy International Airport.  The plaintiff allegedly sustained personal injuries as a result of the incident, and she commenced this action against, among others, the defendant City of New York, the owner of the premises, contending, inter alia, that the City created an “unlevel, pitted, cracked and otherwise dangerous condition” in the walkway area.  The City moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, contending that it was an out-of-possession landlord that had no duty to maintain the area where the plaintiff fell.  In an order dated January 10, 2025, the Supreme Court granted the City's motion.  The plaintiff appeals.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;  Smith v. Bank of N.Y. Mellon, 237 AD3d 1128, 1129).  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, qualify as documentary evidence in proper cases (see MJ Lilly Assoc., LLC v. Ovis Creative, LLC, 221 AD3d 805, 806;  Fontanetta v. John Doe 1, 73 AD3d 78, 84–85).  Conversely, letters, emails, and affidavits do not meet the requirements for documentary evidence (see Nagubandi v. County of Rockland, 241 AD3d 1480, 1482;  Yan Ping Xu v. Van Zwienen, 212 AD3d 872, 874).

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88;  Rosas v. Morales, 235 AD3d 678, 679).  In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action (see Torres v. City of New York, 153 AD3d 647, 648).  If the court considers evidentiary material, and the motion is not converted into one for summary judgment, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Hart v. Theatre Three Prods., Inc., 247 AD3d 737;  S. Garson, LLC v. Luck, 246 AD3d 961;  Macru v. Shorefront Operating, LLC, 244 AD3d 1092;  Etimos v. Casa Bella Prop. Mgt., LLC, 244 AD3d 1070).

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct (see Colson v. AO Petroleum, Inc., 245 AD3d 792;  Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18).  Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it (see Colson v. AO Petroleum, Inc., 245 AD3d 792;  Vaughan v Triumphant Church of Jesus Christ, 193 AD3d 1104, 1105).

Here, the documentary evidence submitted by the City failed to utterly refute the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law (see CPLR 3211[a][1] ).  According to section 12.1.1 of the lease agreement between the City and its tenant, the City retained “ownership and control” over the “Retained Water System Property,” which consisted of “sewers, water mains, water and wastewater conduits, wastewater treatment facilities, sludge lines, a sludge dock and a sludge tank, power lines, telephone and signal lines, meters and other facilities.”  The Retained Water System Property was “not part of the Demised Premises and not subject to [the lease agreement],” and the City had the right to “maintain, repair, restore and replace all portions of the Retained Water System Property, provided, that any such maintenance, repair, restoration or replacement shall not interfere with or affect the safe operation of the Demised Premises.”  The documentary evidence submitted in support of the City's motion pursuant to CPLR 3211(a)(1) failed to address whether the City performed work in the area where the accident occurred in connection with the Retained Water System Property and whether the City affirmatively created the condition.  Accordingly, the City failed to conclusively establish a defense as a matter of law (see id.;  Pirozzi v. Garvin, 185 AD3d 848, 850;  Torres v. City of New York, 153 AD3d at 649;  Phillips v. Taco Bell Corp., 152 AD3d 806, 807;  Wolfe v. Long Is. Power Auth., 34 AD3d 575, 576).

In addition, the City failed to establish that the plaintiff did not have a viable cause of action (see CPLR 3211[a][7];  Russo v. Crisona, 219 AD3d 920, 923;  Pirozzi v. Garvin, 185 AD3d at 850–851;  Torres v. City of New York, 153 AD3d at 649;  Mahler v. North Shore Camp, LLC, 145 AD3d 678, 679).  The evidence submitted by the City and the plaintiff failed to show that no significant dispute existed as to whether the City was an out-of-possession landlord that did not have a duty to maintain the area where the accident occurred and that the City did not affirmatively create the condition that allegedly caused the plaintiff to fall.

In light of the above, it is not necessary to address the plaintiff's remaining contention.

Accordingly, the Supreme Court should have denied the City's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.