| Simos v Vic-Armen Realty, LLC |
| 2012 NY Slip Op 01237 [92 AD3d 760] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Demetra Simos, Appellant, v Vic-Armen Realty, LLC, etal., Defendants, and Blvd Wines & Liquors, Inc., Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), enteredDecember 9, 2010, as granted the motion of the defendant Blvd Wines & Liquors, Inc., in effect,pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Blvd Wines & Liquors, Inc., in effect, pursuant to CPLR 3211 (a) (7) todismiss the complaint insofar as asserted against it is denied.
In May 2009, the plaintiff commenced this action against, among others, Blvd Wines &Liquors, Inc. (hereinafter Blvd Wines), to recover damages for personal injuries she allegedlysustained when she fell over metal cellar doors on the sidewalk abutting premises leased by BlvdWines. As relevant here, the Supreme Court granted Blvd Wines' motion, in effect, pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.
"In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should 'acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory' " (Sinensky vRokowsky, 22 AD3d 563, 564 [2005], quoting Leon v Martinez, 84 NY2d 83,87-88 [1994]).
A court may consider evidentiary material submitted by a defendant in support of a motion todismiss pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180,1181 [2010]). "When evidentiary material is considered, the criterion is whether the proponent ofthe pleading has a cause of action, not whether he has stated one, and, unless it has been shownthat a material fact as claimed by the pleader to be one is not a fact at all and unless it can be saidthat no significant dispute exists regarding it . . . dismissal should not eventuate"(Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Sokol v Leader, 74AD3d at 1182).[*2]
Here, Blvd Wines did not submit evidence demonstratingthat any fact alleged in the complaint "was, undisputedly, 'not a fact at all' " (Sokol vLeader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).That standard was not satisfied either by the affidavit of the owner of Blvd Wines (see Bodden v Kean, 86 AD3d 524,526 [2011]; Kempf v Magida, 37AD3d 763, 765 [2007]) or by the provisions of the lease between Blvd Wines and the ownerof the premises relating to the control and maintenance of the area where the accident occurred(see Maloney v King, 254 AD2d 231 [1998]; cf. Columbo v Chase ManhattanAutomotive Fin. Corp., 297 AD2d 327, 328 [2002]).
Accordingly, the Supreme Court should have denied Blvd Wines' motion, in effect, pursuantto CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.
In light of our determination, we need not reach the plaintiff's remaining contention. Skelos,J.P., Balkin, Roman and Sgroi, JJ., concur. [Prior Case History: 2010 NY Slip Op33461(U).]