INDEX NO. 700936/2015
FILED: QUEENS COUNTY CLERK 01/22/2016 09:46 AM
NYSCEF DOC. NO. 43
RECEIVED NYSCEF: 01/22/2016
-
Short Form Order
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------](
KATHY PANTOS,
Plaintiff,
Motion Date: July 24, 2015
Motion Seq. NO.2
Motion Cal. No. 81
- againstANGELO GALANIS, TOSHIKO GALANIS,
GERARDO F. FERNANDEZ and DAISY
FERNANDEZ,
Defendants.
---------------------------------------------------------------](
The following papers numbered E24 to E42 read on defendants Evangelo Galanis and
Toshiko Galanis' ("Galanis defendants") motion to dismiss pursuant to CPLR 3211(a)(l) and
m!
..
Notice of Motion, Affirmation, Affidavits
Opposition, E](hibits (plaintifJ)
Opposition (co-defendants)
Reply
.
.
.
.
Papers
Numbered
E24-E28
E29-E30
E41-E42
E38-E39
Upon the foregoing papers, it is ordered that defendants' motion is decided as follows:
This action stems from a slip and fall at the premises located at 35-31 Crescent Street,
Astoria, New York ("Crescent Street premises") that is owned by the defendants Gerardo F.
Fernandez and Daisy H. Fernandez ("Fernandez defendants"). The Galanis defendants maintain
that they never owned, occupied, used or had any responsibility for the Crescent Street premises;
rather, they owned the apartment where plaintiff previously resided located at 32-19 29'h Street,
Astoria, New York ("29'h Street premises"). Further, that they never performed, hired anyone to
perform or supervised any repair work done at the Crescent Street premises. Affidavits of the
Galanis defendants are provided to substantiate same, and based on the above facts they move to
dismiss plaintiffs complaint against them pursuant to CPLR 321 1(a)(l) and (7).
"To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary
evidence that forms the basis of the defense must be such that it resolves all factual issues as a
matter of law, and conclusively disposes of plaintiffs claim" (Trade Source v Westchester Wood
0d
Works, 290 AD2d 437 [20d Dept. 2002] citing Tietler v Pollack & Sons, 288 AD2d [2 Dept.
1
2001]; see also Leon v Martinez, 84 NY2d 83 [1994]). Defendants here present only their
affidavits as documentary evidence. These are insufficient and not considered as documentary
evidence in the context of this motion, (see Cives Com. v Georges A. Fuller Co .. Inc., 97 AD3d
713,714 [2"dDept. 2012]; see also Suchmacher v Manana Grocerv. 73 AD3d 1017 [2"dDept.
2010], Fontanetta v John Doe 1,73 AD3d 78 [2"dDept. 2010]).
On a motion to dismiss under CPLR 3211 (a)(7) "the standard is whether the pleading
[from its four comers] states a cause of action, i.e. whether "factual allegations are discerned
which taken together manifest a cause of action cognizable at law" (Morad v Morad, 27 AD3d
626, 627 [2006], see also EBCI, Inc,. v Goldman Sachs & Co., 5 NY3d 11 [2005], Goshen v
Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002], Holmes v Gary Goldberg & Co .. Inc.,
40 AD3d 1033 [2007]); not whether the proponent of the pleading has a cause of action" (Sokol
v Leader, 74 AD3d 1180, 1180-81 [2"dDept. 2010]). "[T]he pleading is to be afforded a liberal
construction [see CPLR 93026], and the plaintiffs allegations [therein] are accepted to be true
and accorded the benefit of every possible favorable inference", (Granada Condo. III Assn. v
Palomino, 78 AD3d 996 [2"dDept. 2010]; see also Leon, 84 NY2d at 87-88 [1994], Dee v
Rakower, 112 AD3d 204, 208 [2"dDept. 2013], Sokol v Leader, 74 AD3d 1180, 1180-81 [2"d
Dept. 2010], Guggenheimer v Ginxburg, 43 NY2d 268, 275 [1977]). However, "bare legal
conclusions and factual claims that are flatly contradicted by the record are not presumed to be
true" (Paro1a. Gross & Marino. P.C. v Susskind, 43 AD3d 1020, 1021-22 [2"dDept. 2007] citing
Morone v Morone, 50 NY2d 481 [1980]; see also Kupersminth Winged Foot Golf Club Inc., 38
AD3d 847 [2"dDept. 2007], Meyer v Guinta, 262 AD2d 463 [2"dDept. 1999]).
The Galanis defendants argue that an action sounding in negligence which, is based on a
defective or dangerous condition on property is predicated upon ownership, occupancy or control
of such property, (see Minott v City of New York, 230 AD2d 719 [2"dDept. 1996]; see also
Turrisi v Ponderosa, Inc., 179 AD2d 956, 957 [3'd Dept. 1992], Balsam v Delma Eng'g Com.,
139 AD2d 292 [1" Dept. 1988]), and as they do not own, occupy or control the property on
which plaintiff s accident occurred she can state no cause of action against them. Further, that
even if they had hired an individual to make repairs to the property they are not liable for such
independent contractor's negligent acts, (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]).'
Plaintiff counters that her action is not based on the moving defendants ownership or
occupancy of the Crescent Street premises, but rather on the alleged promise of the Galanis
defendants to repair the premises at Crescent Street, in exchange for plaintiffs agreement to
vacate their 29th Street premises and relocate there. These allegations are pleaded in more detail
in plaintiffs complaint, and the Court must accept them as true, (Granada Condo. III Assn. v
Palomino, 78 AD3d at 996; see also Leon, 84 NY2d at 87-88 [1994], Dee v Rakower, 112
AD3d at 208, Sokol v Leader, 74 AD3d atl180-81, Guggenheimer v Ginxburg, 43 NY2d at 275).
In doing so, it must also deny the moving defendants' request as plaintiff has stated a cause of
'The Court notes there are many exceptions to this general rule, (see Kleeman v Rheingold, 81 NY2d at
274).
2
action for negligent repair, since in the case of a gratuitous promise to repair, one who volunteers
becomes liable for any negligence in making such repairs, (see Marks v Nambil Realty Co., 245
NY 256,258 [1927]; see also Parvi v City of Kingston, 41 NY2d 553, 559 [1977], Ruiz v
Griffin, 71 AD3d 1112,1114 [2'd Dept. 2010], Demshick v Community Hous. Mgt. Com., 34
AD3d 518 [2,d Dept. 2006]).
Whether plaintiff can ultimately prove such negligence is presently of no consequence,
(see Sokol v Leader, 74 AD3d atI180-81), and defendants' reply that appears to hold plaintiff to
this ultimate burden converting their motion to one for summary judgment is likewise immaterial
to the instant motion.
The Galanis defendants' motion is denied in its entirety.
Dated:
I~
Rudolph E. Gre
l.S.C.
0
3