ADDITIONAL CASES Artimus Construction Inc. and J2 Owner LLC, Third-Party Plaintiffs v. Cole Partners, Inc., Third-Party Defendants Land & Sea Development Corp., Second Third-Party Plaintiffs v. Cole Partners, Inc., Second Third-Party Defendants Cole Partners, Inc., Third Third-Party Plaintiffs v. Stroh Engineering Services, P.C., Third Third-Party Defendants Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits Other DECISION/ORDER Upon the foregoing papers, third third-party defendant Stroh Engineering Services, P.C. (Stroh)’s motion to dismiss the third third-party complaint (Seq. 002) is decided as follows: Introduction Plaintiff’s estate commenced this action to recover for decedent plaintiff’s injuries and ultimate death that it claims were caused by a demolition accident that occurred on February 20, 2020. The instant motion concerns the indemnification responsibilities of Stroh, a demolitions engineer. Third third-party plaintiff Cole Partners, Inc. (Cole) was the demolition sub-contractor performing work at the site. No depositions have been conducted in this action. Stroh moves to dismiss Cole’s third third-party complaint against it. Analysis A motion to dismiss is not a substitute for a motion for summary judgment, and considerations about whether a party may one day prevail on summary judgment play no part in deciding a pre-answer motion to dismiss (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]). CPLR 3211 (a)(1) To dismiss a claim pursuant to CPLR 3211 (a) (1), the movant must produce documents that resolve “all factual issues as a matter of law, and conclusively [dispose] of the plaintiff’s claim” (534 K, LLC v. Flagstar Bank, FSB, 187 AD3d 971 [2d Dept 2020]; see also Braun Soller v. Dahan, 173 A.D.3d 803, 805 [2d Dept 2019]). Documentary evidence for the purpose of this statute includes “out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (McDonald v. O’Connor, 189 AD3d 1208, 1210 [2d Dept 2020]). Stroh seeks to rely on the affidavit of its principal, Peter Stroh. However, explanatory or narrative affidavits are testimonial in nature, and as such generally cannot support dismissal of a plaintiff’s claims under CPLR 3211 (VIT Acupuncture, P.C. v. State Farm Auto. Ins. Co., 28 Misc 3d 1230[A], 2010 NY Slip Op 51560[U] [Civ Ct, Kings County 2010]; Sokol v. Leader, 74 AD3d 1180, 1182 [2d Dept 2010]; Berger v. Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]). These affidavits are neither anticipated nor intended to substitute for the more complete testimony which may be adduced through the discovery process. Without documentary evidence, Mr. Stroh’s affidavit does not warrant dismissal under CPLR 3211 (a) (1). CPLR 3211 (a) (7) “Under CPLR 3211 (a) (7), the applicable test is whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action…The court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated” (VIT Acupuncture P.C. v. State Farm Auto Ins. Co., 28 Misc 3d 1230[A], 2010 NY Slip Op 51560[U], *1 [Civ. Ct, Kings County 2010] quoting Board of Educ. Of City School Dist. Of City of New Rochelle v. County of Westchester, 282 AD2d 561 [2d Dept 2001]). In this case, defendant’s submissions are inadequate to show that the third third-party plaintiff failed to state a cause of action. The third third-party complaint does allege Stroh’s negligence and thereafter pleads a cause of action for common-law indemnification and contribution (Cole complaint at 25-26, 28). Additionally, the complaint alleges the existence of a contract wherein Stroh agreed to indemnify Cole (id. at 33-34). Finally, the complaint alleges that Stroh was contractually obligated to obtain general liability coverage and failed to do so, and thereafter pleads breach of contract (id. at 38-39). While Stroh’s submissions and arguments may eventually weigh on the merits of Cole’s complaint, they are not sufficient to demonstrate that Cole has failed to state a cause of action as a matter of law. Conclusion Stroh’s motion to dismiss (Seq. 002) is denied. Stroh shall interpose an answer within thirty days of the entry of this order. This constitutes the decision of the court. Dated: January 17, 2024
