| James v Bain |
| 2011 NY Slip Op 05834 [86 AD3d 675] |
| July 7, 2011 |
| Appellate Division, Third Department |
| William Reese James et al., as Coadministrators of the Estate ofShannon Renee James, Deceased, Appellants, v William H. Bain, III,Respondent. |
—[*1] Law Offices of Theresa J. Puleo, Albany (Laurie M. Lewis of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (McKeighan, J.), entered July 29, 2010in Washington County, which granted defendant's motion to dismiss the complaint.
Plaintiffs are the coadministrators of the estate of Shannon Renee James, a teenager who diedas the result of injuries she sustained when an automobile in which she was a passenger left theroad and struck a tree. The vehicle was owned by defendant and driven by defendant'sgrandnephew, Dustin St. Andrews. The facts of this case are otherwise identical to those of Lopes v Bain (82 AD3d 1553[2011]).
Plaintiffs commenced this wrongful death action alleging that defendant is vicariously liablefor the death of James because, among other things, defendant gave permission to St. Andrews touse his vehicle (see generally Vehicle and Traffic Law § 388 [1]). Defendant madea pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) based uponSupreme Court's prior order dismissing the complaint in Lopes v Bain (supra),affidavits, and the admission of St. Andrews—made during his plea allocution in acriminal matter arising from this incident—that he had stolen defendant's vehicle and didnot have permission to use it. Supreme Court granted the motion and plaintiffs appeal.
Although defendant relies upon case law relative to summary judgment, there is noindication in the record that the application was converted to such a motion (see CPLR3211 [c]; [*2]Siegel, NY Prac § 270, at 451-452 [4th ed]),nor that the parties charted such a course (see Mihlovan v Grozavu, 72 NY2d 506, 508[1988]). Thus, as in Lopes v Bain (supra), we find that the affidavits submitted insupport of defendant's motion to dismiss based upon CPLR 3211 (a) (1) do not constitute"documentary evidence" as contemplated by that provision and, even assuming the transcript ofthe plea allocution may so qualify, it still fails to "definitively refute, as a matter of law,plaintiff[s'] claim that there was implied permission" (Lopes v Bain, 82 AD3d at 1554;see Crepin v Fogarty, 59 AD3d837, 838 [2009]; Siegel, NY Prac § 259, at 440-441 [4th ed]; see also Siegel,Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, 2011Pocket Part, at 5). Dismissal on this ground was therefore in error.
Similarly, it was inappropriate for Supreme Court to grant defendant's motion based uponCPLR 3211 (a) (7). According plaintiffs every favorable inference and accepting the facts allegedas true, the complaint sets forth a cognizable claim for wrongful death, which precludes dismissalfor failure to state a cause of action (seeNonnon v City of New York, 9 NY3d 825, 827 [2007]; Alaimo v Town of Fort Ann, 63 AD3d1481, 1482-1484 [2009]).
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion denied and matter remitted to the Supreme Court to permit defendantto serve an answer within 20 days of the date of this Court's decision.