| Kraut v City of New York |
| 2011 NY Slip Op 05460 [85 AD3d 979] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Aron Kraut, Respondent, v City of New York, Defendant,and Hartford Insurance Company, Appellant. |
—[*1] Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Jillian Rosen], of counsel), for respondent.
In an action, inter alia, to recover damages for negligence, false arrest, and battery, thedefendant Hartford Insurance Company appeals from so much of an order of the Supreme Court,Kings County (Velasquez, J.), dated January 14, 2011, as denied that branch of its motionpursuant to CPLR 3211 (a) (7) which was to dismiss the cause of action alleging that itnegligently caused the plaintiff to be falsely arrested.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Hartford Insurance Company which was pursuant to CPLR3211 (a) (7) to dismiss the cause of action alleging that it negligently caused the plaintiff to befalsely arrested is granted.
The plaintiff alleged that he was wrongfully arrested by New York City police officers basedon their erroneous assertion that he was operating his motor vehicle without insurance or adriver's license. He further alleged that he was assaulted and falsely imprisoned by the police.With regard to his own automobile insurance carrier, Sentinel Insurance Company, Ltd., whichwas named in the summons and complaint as Hartford Insurance Company (hereinafter thedefendant), the plaintiff alleged that the defendant negligently "failed to provide properdocumentation that [the] plaintiff's vehicle was duly insured."
The defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against it for failure to state a cause of action, contending in part that the factualallegations of the complaint, and the plaintiff's own testimony at a General Municipal Law§ 50-h hearing, negated the element of proximate cause which was essential to thenegligence claim against it. In the order appealed from, the Supreme Court granted the motion inpart and denied it in part. We reverse the order insofar as appealed from.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the motion court must accept thefacts alleged in the complaint as true, afford them every reasonable inference favorable to theplaintiff, and determine only whether the facts as alleged fit within any cognizable legal theory(see Goshen v Mutual [*2]Life Ins. Co. of N.Y., 98 NY2d314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Holster v Cohen, 80 AD3d 565,566 [2011]). Moreover, if the motion court considers evidentiary material submitted in support ofthe motion, the inquiry becomes whether the plaintiff has a cause of action, not merely whetherhe has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180,1181-1182 [2010]). On those relatively rare occasions that the submissions on the motion provethat a material fact alleged by the plaintiff is not a fact at all and that no significant dispute existsregarding it, dismissal of the complaint is warranted (see generally Simpson v Alter, 78 AD3d 813, 815 [2010]; Dana v Shopping Time Corp., 76AD3d 992, 994 [2010]).
To state a cause of action in negligence, a party must allege the existence of a duty of careowed to the injured party, a breach of that duty, and an injury proximately caused by that breach(see Jiminez v Shahid, 83 AD3d900 [2011]; Ruiz v Griffin, 71AD3d 1112, 1114 [2010]; Prescott v Newsday, Inc., 150 AD2d 541, 542 [1989]).Here, the allegations of the complaint itself negated the essential element of proximate causewith regard to the defendant, since the pleading alleged that the plaintiff's arrest was predicatedupon the lack of a driver's license in addition to a lack of insurance, and the plaintiff's ownGeneral Municipal Law § 50-h hearing testimony established probable cause for his arrestbased solely on his lack of a driver's license. Accordingly, there was an independent ground forthe plaintiff's arrest, completely unrelated to any purported negligence on the part of thedefendant, and any alleged act or omission of the defendant did not proximately cause theplaintiff's injuries (see generally Jaegly v Couch, 439 F3d 149, 153-154 [2006]).
Furthermore, the plaintiff's hearing testimony demonstrated that the sole basis for his arrestwas his lack of a valid driver's license, and that no inquiry was made and no problem wasdiscovered with regard to his insurance documentation at the time of his arrest. This testimony,which constituted a judicial party admission (see Ocampo v Pagan, 68 AD3d 1077, 1078-1079 [2009]; Renov County of Westchester, 289 AD2d 216, 217 [2001]), conclusively refuted the allegation inthe complaint that the arrest was premised upon a lack of insurance. Although the plaintiffcontends that his hearing testimony should not have been considered because there is no evidencethat a transcript of the testimony was received and signed by him, the plaintiff adopted thecontents of the transcript by appending it to his sworn bill of particulars and serving it upon thedefendants during discovery. Moreover, the affidavit submitted by the plaintiff in opposition tothe defendant's motion failed to warrant the denial of the motion.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Angiolillo, Chambersand Cohen, JJ., concur.