| Pasquaretto v Long Is. Univ. |
| 2013 NY Slip Op 03308 [106 AD3d 794] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Joseph Pasquaretto, Appellant, v Long IslandUniversity et al., Respondents, et al., Defendants. |
—[*1] Matthew Siebel, Brookville, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Nassau County (Woodard, J.), dated January 4,2012, as granted the motion of the defendants Long Island University and C.W. PostCollege of Long Island University pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, who at the time was a student at C.W. Post College of Long IslandUniversity, allegedly sustained personal injuries while "pledging" or "rushing" formembership in the Kappa Sigma Fraternity Omicron-Beta Chapter (hereinafter theFraternity). The plaintiff commenced this action alleging, inter alia, that the defendantsLong Island University and C.W. Post College of Long Island University (hereinaftertogether the University defendants) were negligent in failing to supervise and control theactivities of the Fraternity. The University defendants moved to dismiss the complaintpursuant to CPLR 3211 (a) (1) and (7) insofar as asserted against them. The SupremeCourt concluded that they were entitled to dismissal on both grounds, and granted theirmotion. We affirm, but conclude that dismissal pursuant to CPLR 3211 (a) (1) wasimproper.
Dismissal pursuant to CPLR 3211 (a) (1) should be granted only where thedocumentary evidence that forms the basis of the defense is such that it refutes theplaintiff's factual allegations, and conclusively disposes of the plaintiff's claims as amatter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Parekh v Cain, 96 AD3d812, 815 [2012]; SatoConstr. Co., Inc. v 17 & 24 Corp., 92 AD3d 934, 935-936 [2012]). To qualifyas documentary evidence, the evidence "must be unambiguous and of undisputedauthenticity" (Fontanetta v JohnDoe 1, 73 AD3d 78, 86 [2010]; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807,808 [2012]).
Here, the documents submitted by the University defendants, which included amedical leave request form with an annexed letter from the plaintiff's physician, do notconstitute documentary evidence for the purposes of a motion to dismiss the complaintpursuant to CPLR 3211 (a) (1) (see Granada Condominium III Assn. v Palomino, 78 AD3d996, 997 [2010]). Moreover, the [*2]evidence failsto utterly refute the plaintiff's allegations regarding the University defendants'negligence. Consequently, the Supreme Court should not have directed dismissal of thecomplaint pursuant to CPLR 3211 (a) (1).
The Supreme Court, however, properly directed dismissal of the complaint pursuantto CPLR 3211 (a) (7). On a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), the court must accept the alleged facts in the complaint as true and afford theplaintiff the benefit of every possible favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory (see Leon v Martinez,84 NY2d 83, 87 [1994]; Baronv Galasso, 83 AD3d 626, 628 [2011]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]). Moreover,the court may consider affidavits submitted by the plaintiff to remedy any defects in thecomplaint and, upon considering such affidavits, the facts alleged therein must also beassumed to be true (seeKopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797 [2011]; Pike v New York Life Ins. Co.,72 AD3d 1043, 1049 [2010]).
To prevail on a cause of action alleging negligence, a plaintiff must establish theexistence of a legal duty, a breach of that duty, proximate causation, and damages."Absent a duty of care, there is no breach, and without breach there can be no liability"(Fox v Marshall, 88 AD3d131, 135 [2011], citing Pulka v Edelman, 40 NY2d 781, 782 [1976]). Theexistence of a legal duty presents a question of law for the court (see Eiseman v Stateof New York, 70 NY2d 175, 189 [1987]; Talbot v New York Inst. of Tech.,225 AD2d 611, 612 [1996]). "New York has affirmatively rejected the doctrine of inloco parentis at the college level and colleges 'in general have no legal duty to shield theirstudents from the dangerous activity of other students' " (Luina v Katharine Gibbs SchoolN.Y., Inc., 37 AD3d 555, 556 [2007], quoting Eiseman v State of NewYork, 70 NY2d at 190; see Rydzynski v North Shore Univ. Hosp., 262AD2d 630, 630 [1999]). A duty, however, may be imposed upon a college where it hasencouraged its students to participate in an activity and taken affirmative steps tosupervise and control the activity (see Hores v Sargent, 230 AD2d 712, 712[1996]).
Here, the plaintiff's allegations, even as supplemented by his affidavit, failed tosufficiently allege that the University defendants owed the plaintiff a duty with respect tothe Fraternity's initiation process. Specifically, the plaintiff did not sufficiently allege thatthe University defendants' involvement in the Fraternity's initiation process was of adegree that gave rise to a duty (see Rothbard v Colgate Univ., 235 AD2d 675,676 [1997]; Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153, *3, 1999 USDist LEXIS 906, *7 [ND NY 1999]). Consequently, the plaintiff failed to state a cause ofaction to recover damages for negligent supervision as against the University defendants.Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.