| Dolphin Holdings, Ltd. v Gander & White Shipping,Inc. |
| 2014 NY Slip Op 08316 [122 AD3d 901] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| Dolphin Holdings, Ltd., Appellant, v Gander& White Shipping, Inc., Respondent. |
McLaughlin & Stern, LLP, New York, N.Y. (Jon Paul Robbins and Peter R.Stern of counsel), for appellant.
Wade Clark Mulcahy, New York, N.Y. (Dennis M. Wade and Michael A.Bono of counsel), for respondent.
In an action, inter alia, to recover damages for gross negligence, the plaintiff appealsfrom so much of an order of the Supreme Court, Queens County (Strauss, J.), enteredOctober 22, 2013, as granted that branch of the defendant's motion which was pursuantto CPLR 3211 (a) (7) to dismiss the cause of action alleging gross negligence.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) todismiss the cause of action alleging gross negligence is denied.
"On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, the complaint must be construed liberally, the factual allegations deemed to betrue, and the nonmoving party must be given the benefit of all favorable inferences"(Leon v Martinez, 84 NY2d 83, 87 [1994]; see Carillo v Stony Brook Univ., 119 AD3d 508, 508-509[2014]). The court is limited to "an examination of the pleadings to determine whetherthey state a cause of action," and the "plaintiff may not be penalized for failure to makean evidentiary showing in support of a complaint that states a claim on its face" (Miglino v Bally Total Fitness ofGreater N.Y., Inc., 20 NY3d 342, 351 [2013]). "The test of the sufficiency of apleading is 'whether it gives sufficient notice of the transactions, occurrences, or series oftransactions or occurrences intended to be proved and whether the requisite elements ofany cause of action known to our law can be discerned from its averments' " (V. Groppa Pools, Inc. vMassello, 106 AD3d 722, 723 [2013], quoting Pace v Perk, 81 AD2d444, 449 [1981] [internal quotation marks omitted]).
"A court is, of course, permitted to consider evidentiary material submitted by adefendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)" (Sokol v Leader, 74 AD3d1180, 1181 [2010]), and, if it does so, "the criterion then becomes 'whether theproponent of the pleading has a cause of action, not whether he has stated one' "(id. at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]). "Yet, affidavits submitted by a defendant will almost never warrant dismissalunder CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause ofaction" (Bokhour v GTI RetailHoldings, Inc., 94 AD3d 682, 683 [2012] [internal quotation marksomitted]).
[*2] Gross negligence "differs in kind,not only degree, from claims of ordinary negligence" (Colnaghi, U.S.A. v JewelersProtection Servs., 81 NY2d 821, 823 [1993]; see Goldstein v Carnell Assoc., Inc., 74 AD3d 745, 746[2010]). "To constitute gross negligence, a party's conduct must smack of intentionalwrongdoing or evince a reckless indifference to the rights of others" (Ryan v IMKapco, Inc., 88 AD3d 682, 683 [2011] [internal quotation marks andbrackets omitted]). "Stated differently, a party is grossly negligent when it fails toexercise even slight care or slight diligence" (id. at 683 [internal quotation marksomitted and ellipsis omitted]; see Goldstein v Carnell Assoc., Inc., 74 AD3d at747). Ordinarily, the question of gross negligence is a matter to be determined by the trierof fact (see Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172-173[1981]).
Here, the amended complaint alleges that the plaintiff is a Liberian corporation in thebusiness of owning an art collection and that the defendant is a New York corporation inthe business of packing and transporting valuable works of art. On May 25, 2012, thedefendant's employees allegedly damaged a work of art, worth more than $10 million, inthe process of packing and moving the plaintiff's artwork pursuant to a contract betweenthe parties. More specifically, the amended complaint alleges that the defendant failed toexercise even slight care by, among other things, placing two valuable works in closeproximity to each other, in violation of the defendant's own policy and practice, andthereby causing the works to come in contact with each other, resulting in more than $1million in damage to one of the works. The amended complaint also alleges that thedefendant, by tearing the work either before or while packing it into a travel frame, failedto exercise even slight care.
Although the amended complaint does not set forth the exact manner in which thedefendant damaged the work, taking into account that the defendant is in a better positionto know the details and that the motion was made pre-answer, the pleading sufficientlyidentified the complained-of conduct, and set forth the material elements of a grossnegligence cause of action (see CPLR 3013; Grcic v Peninsula Hosp.Ctr., 110 AD2d 625, 626 [1985]).
Moreover, the affidavits submitted by the defendant in support of its motion "failedto demonstrate that any fact alleged in the complaint was undisputedly not a fact at all"(Bokhour v GTI Retail Holdings, Inc., 94 AD3d at 683; see Guggenheimer vGinzburg, 43 NY2d at 275).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied that branch of the defendant'smotion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleginggross negligence. Chambers, J.P., Sgroi, Miller and Barros, JJ., concur. [Prior CaseHistory: 2013 NY Slip Op 32883(U).]