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Exclusive Motor-Sport LLC v. Westlake Flooring

No Valid Basis Alleged to Impose Duty of Care on Town to Safeguard From Car Repossession

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The following papers numbered 1-11 were read on defendants’, TOWN OF WOODBURY and TOWN OF WOODBURY POLICE DEPARTMENT (hereinafter the “TOWN”) motion to dismiss the complaint and any cross claims insofar as asserted against it pursuant to CPLR 3211 for failure to state a cause of action:Notice of Motion/ Affirmation (Holtzer) /Exhibits A-C          1-5Affirmation in Opposition (Yenchman) 6Affirmation in Oppoisition (Stanziale)/ Exhibits A-C            7-10Reply Affirmation (Stern)     11

*1 Upon review of the foregoing, it is ORDERED that the motion is granted; and it is furtherORDERED that the Complaint and all Cross-Claims as against defendants, TOWN OF WOODBURY and TOWN OF WOODBURY POLICE DEPARTMENT are dismissed.On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Leon v. Martinez, 84 NY2d 83, 87 [1994]). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]; see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Tooma v. Grossbarth, 121 AD3d 1093, 1095 [2d Dept 2014]). Applying this

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