| Harris v IG Greenpoint Corp. |
| 2010 NY Slip Op 03478 [72 AD3d 608] |
| April 29, 2010 |
| Appellate Division, First Department |
| Lisa Harris, Appellant, v IG Greenpoint Corp., Appellant,and The China Club Late Night Management, Inc., et al.,Respondents. |
—[*1] The Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset (Charles R. Strugatz ofcounsel), for IG Greenpoint Corp., appellant. Zaremba Brownell & Brown PLLC, New York (Daniel T. Gluck of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 20,2008, which granted the motion by defendants The China Club Late Night Management, Inc. andNightlife Enterprises, L.P. (collectively China Club) to dismiss the complaint and cross claims asagainst them, unanimously reversed, on the law, without costs, the motion denied, and thecomplaint and cross claims reinstated.
Plaintiff alleges that on February 26, 2006, she tripped and fell on a "defect and/or trippinghazard" in the sidewalk approximately 15 to 18 inches from the curb line outside the entrance tothe nightclub owned and managed by China Club. China Club leases the premises fromdefendant IG Greenpoint Corp. Plaintiff further asserts, based on personal knowledge, that ChinaClub used the sidewalk for entrance, egress and the congregation of patrons and that it cordonedoff a portion of the sidewalk using heavy metal stanchions. Plaintiff argues that the hazardousand defective cracks in issue emanated from the exact locations on the sidewalk where thestanchions were set out each night by China Club and that it was the nightly dragging anddropping of the stanchions that caused the damage to the sidewalk.
When reviewing a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), the factual allegations of the complaint must be deemed to be true, and the courtmust afford the plaintiff the benefit of all favorable inferences that can be drawn from thecomplaint (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318[1995]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Johnson v Kings County Dist.Attorney's Off., 308 AD2d 278, 284 [2003]). The motion must be denied where thecomplaint adequately alleges, for pleading survival purposes, viable causes of action. The solecriterion on a motion to dismiss is whether the pleading states a cause of action, and if, from itsfour corners, factual allegations are [*2]discerned which takentogether manifest any cognizable action at law, a motion for dismissal will fail (seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Here, assuming the plaintiff'sallegations to be true that China Club created the subject hazardous condition on its sidewalkand/or had a special use of the portion of the sidewalk where the accident occurred, the plaintiff'scomplaint has clearly stated a prima facie cause of action against China Club.Concur—Saxe, J.P., Catterson, Moskowitz, DeGrasse and Abdus-Salaam, JJ.