| Stathakos v Metropolitan Tr. Auth. Long Is. R.R. |
| 2013 NY Slip Op 05996 [109 AD3d 979] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Kimon Stathakos, Individually and as Representative of AllOthers Similarly Situated, Appellant, v Metropolitan Transit Authority LongIsland Railroad, Respondent. |
—[*1] Richard L. Gans, Jamaica, N.Y. (Kevin P. McCaffrey of counsel), forrespondent.
In a putative class action, inter alia, to recover damages for breach of contract, theplaintiff appeals from an order of the Supreme Court, Suffolk County (Farnetti, J.), datedApril 13, 2012, which granted the defendant's motion pursuant to CPLR 3211 (a) todismiss the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that his purchases of monthly commutation tickets on thedefendant's railroad created a contractual obligation on the part of the defendant toprovide train service and that he and others similarly situated were entitled to "some sortof refund or credit" because the defendant breached this obligation by suspending orcancelling service on certain days due to severe weather conditions. The Supreme Courtgranted the defendant's motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint.
On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, the court must "accept the facts as alleged in the complaint as true, accordplaintiffs the benefit of every possible favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]; seeGreen v Gross & Levin, LLP, 101 AD3d 1079, 1080-1081 [2012]). A motionpursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action isbarred by documentary evidence may be granted "only where the documentary evidenceutterly refutes plaintiff's factual allegations, conclusively establishing a defense as amatter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; see Green v Gross & Levin, LLP, 101 AD3d at 1080-1081).
Here, even assuming that the purchase of the monthly commutation tickets created anobligation on the part of the defendant to provide train service, the documentary evidencesubmitted by the defendant, in the form of tariff schedules undisputedly in effect at allrelevant times, conclusively established a defense as a matter of law to the allegations ofbreach of contract. The tariff schedules specifically acknowledged the possibility thattrain service might be delayed or cancelled and clearly and unambiguously stated that norefunds would be given for such delays or [*2]cancellations. Indeed, even if the weather conditions weredeemed "natural disasters," or something akin thereto, the tariff schedules only requiredthat the defendant "immediately render" a "position" with regard to refunds. Inasmuch asthe tariff schedules established that the defendant did not breach any contractualobligation by failing to issue a credit or refund for the cancelled train service, that branchof the defendant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint was properly granted.
Moreover, to the extent that the complaint may be construed as sounding in tort, theSupreme Court properly directed dismissal of any such claim pursuant to CPLR 3211 (a)(7), even accepting the facts alleged as true (see Leon v Martinez, 84 NY2d at87-88). The defendant is a public benefit corporation performing an "essentialgovernmental function" (Public Authorities Law § 1264 [2]; seeClark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 386 [1987]), and itsdecision not to issue refunds as a result of the subject service interruptions, like itsdecision to suspend services because of weather conditions, was discretionary in nature.As such, the defendant is not answerable in damages (see Haddock v City of NewYork, 75 NY2d 478, 484 [1990]; Kelleher v Town of Southampton, 306AD2d 247, 248 [2003]; Leeds v Metropolitan Transp. Auth., 117 Misc 2d 329[1983]; see generally Valdez vCity of New York, 18 NY3d 69 [2011]; McLean v City of New York, 12 NY3d 194, 203 [2009]).Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.