| Lazic v Currier |
| 2010 NY Slip Op 00449 [69 AD3d 1213] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Radoje Lazic et al., Respondents, v Carole A. Currier etal., Appellants. |
—[*1] Freeman Howard, P.C., Hudson (Cailin C. Brennan of counsel), for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Donohue, J.), entered November 3,2008 in Columbia County, which denied defendants' motions to dismiss the complaint.
Plaintiffs disagree with two of their neighbors about whether plaintiffs own and/or have aneasement over parts of a former town road, which runs along the borders of the parties' variousproperties and which was abandoned in the mid-1950s by the Town of Gallatin, ColumbiaCounty. The abandoned road (referred to by the parties as Old Snyderville Road) runs generallyfrom Snyderville Road at its southerly end, a distance estimated at less than a quarter of a mile,to County Route 8 at its northerly end. Defendant Carole A. Currier's property is locatedgenerally on the east side of the abandoned road for its entire distance. On the west side of theabandoned road, going from south to north, are the properties of defendant Louis Bonifati,plaintiffs, and an individual who is not involved in this litigation. Plaintiffs commenced thisaction seeking, among other things, to enjoin defendants from allegedly blocking a portion of theabandoned road that plaintiffs claim they own and further declaring that plaintiffs have aneasement over the abandoned road. Defendants made pre-answer motions to dismiss assertingthat the complaint failed to state a cause of action (see CPLR 3211 [a] [7]) and that theaction was barred by the statute of limitations (see CPLR 3211 [a] [5]). Supreme Courtdenied defendants' motions and they now appeal.
When considering a motion to dismiss pursuant to CPLR 3211, the complaint is [*2]liberally construed, the facts alleged therein are accepted as true,plaintiffs are accorded every favorable inference and the court determines only whether the factsalleged in the complaint "fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]); see EBC I,Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Crepin v Fogarty, 59 AD3d 837,838 [2009]). Further, "a court may freely consider affidavits submitted by the plaintiff to remedyany defects in the complaint" (Leon v Martinez, 84 NY2d at 88). Applying this liberalstandard, plaintiffs' complaint was sufficient to survive pre-answer dismissal.
Plaintiffs allege in their complaint and in affidavits submitted in opposition to the dismissalmotions that, among other things, their predecessors were entitled to ownership to the centerlinewhen the road was abandoned by the Town. They contend that part of the property in disputefalls within such area. An affidavit and survey from a licensed surveyor was submitted andpurports to show ownership by plaintiffs to the centerline of the former road. Plaintiffs alsoassert that they and prior owners had continuously used the road before it was abandoned as away to access a portion of their property and that such portion of their property is accessible onlyby such means. While various reply papers submitted by defendants reflect that they may haveviable defenses, those papers are insufficient to necessitate dismissal at this early point in thelitigation. Defendants' statute of limitations defense rests upon factual contentions, some ofwhich are contested by plaintiffs, and thus does not provide a ground for dismissal at thisprocedural juncture. The remaining arguments have been considered and are unpersuasive.
Peters, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.