The following papers numbered 1-6 were read and considered on Defendant COUNTY OF ORANGE’s Notice of Motion (Motion # 1) for an Order pursuant to Civil Practice Law and Rules §3211(a)(1) and (7), granting the COUNTY’s motion and dismissing the Complaint and any cross-claims in its entirety as against said Defendant and for such other and further relief as this Court deems just and proper; and it is also read and considered on Defendants TOWN OF WALKILL INDUSTRIAL DEVELOPMENT AGENCY and TOWN OF WALKILL’s Notice of Motion (Motion #2) for an Order (a) dismissing Plaintiff’s Complaint in its entirety or as against the TOWN OF WALKILL and TOWN OF WALKILL INDUSTRIAL DEVELOPMENT AGENCY as follows: (1) pursuant to Civil Practice Law and Rules §3211(a)(1) and (a)(7) dismissing Plaintiff’s claim for negligence for failure to state a cause of action, (b) awarding Defendants TOWN OF WALKILL INDUSTRIAL DEVELOPMENT AGENCY and TOWN OF WALKILL costs and disbursements incurred in defending this meritless action and (c) granting such other and further relief as the Court may deem just and proper: PAPERS NUMBERED Notice of Motion (Motion #1)/Affirmation of Stephanie T. Midler, Esq./Exhibit A-H/Memorandum of Law in Support 1 Notice of Motion (Motion #2)/Affirmation of Katherine E. Krahulik, Esq./Exhibits A-E 2 Affidavit of Stephanie T. Midler, Esq./Memorandum of Law in Support 3 Affidavit of Mark J. Linder, Esq./Exhibits 1-2 4 Letter to Court from Stephanie T. Midler, Esq 5 Affirmation of Reply of Stephanie T. Midler, Esq./Memorandum of Law in Reply 6 DECISION & ORDER The lawsuit arises out of a slip and fall “in the parking lot area in front of and abutting to the lands and premises located at 511 Schutt Road Ext. in the Town of Wallkill…” on July 8, 2022, at approximately 8:30 p.m. PROCEDURAL HISTORY Plaintiff filed a Notice of Claim against the Defendant County of Orange [hereinafter County] on July 29, 2022, alleging that she was injured due to the County’s negligence in the “ownership, management, operation, maintenance and control of a public parking lot.” According to the Notice of Claim the alleged accident occurred on July 8, 2022, at approximately 8:30 p.m. “in the parking lot in front of and abutting to the lands and premises located at 511 Schutt Road Ext., in the Town of Wallkill, County of Orange.” The Plaintiff alleged that she tripped and fell while walking at the above location and sustained injuries due to the negligent, dangerous and /or defective conditions. Specifically, the Plaintiff asserted that the conditions of the parking lot included but was not limited to the surface being dilapidated, broken, “potholded,” cracked, uneven and having inadequate lighting. Annexed to the Notice of Claim was one (1) photograph and two (2) Google Maps photographs. According to Defendant County after receipt of Plaintiff’s Notice of Claim they sent Plaintiff’s Counsel a letter dated August 9, 2022, with an Affidavit of Erik Denega, Commissioner for the Orange County Department of Public Works dated August 8, 2022, indicating that the County did not own, operate, manage, maintain, supervise, or control the subject location where the Plaintiff alleged her accident occurred. The aforementioned letter also contained a Proposed Stipulation Withdrawing the Notice of Claim for Plaintiff’s counsel to sign. Defendant County assert that they never received a “formal response” to their August 9, 2022, letter. Rather, the County states that Plaintiff’s counsel sent a letter to them dated November 6, 2022, asserting that the County had waived its right to conduct an examination pursuant to General Municipal Law §50-h. The County states in response they sent a letter to Plaintiff’s Counsel dated November 21, 2022, indicating that they never owned, maintained, or controlled the subject location along with a copy of the August 9, 2022, letter and the August 8, 2022, Affidavit of Erik Denega. According to the County they received no response to their November 21, 2022. Plaintiff commenced the instant action on July 13, 2023, by the filing of a Summons and Verified Complaint naming as Defendants the County of Orange, HUH Wallkill Town Center 2016, LLC, the Town of Wallkill Industrial Development Agency, and the Town of Wallkill. Defendant HUH WALLKILL TOWN CENTER 2016, LLC joined issue by service of a Verified Answer raising fourteen (14) Affirmative Defenses and four (4) cross claims against the co-Defendants, the County, the Town of Wallkill, for contractual indemnification, common law indemnification, contribution, and a failure to procure insurance. Defendants County and Town of Wallkill Industrial Development Agency and Town of Wallkill each filed the instant pre-Answer Motions to Dismiss (Motions # 1 and #2). MOTION TO DISMISS — COUNTY OF ORANGE (MOTION#1) The Defendant County asserts that the instant action should be dismissed as they have provided documentation to Plaintiff’s counsel in the form of an affidavit of the Commissioner of the Orange County Department of Public Works that demonstrates that they have no ownership or other interest in the subject property where Plaintiff alleged she fell. Further, Defendant County notes that if the Plaintiff had conducted any due diligence, they would have discovered that the deed of the property indicates that the owner of the subject property is Defendant HUH Wallkill Town Center 2016, since December 30, 2016. Based upon the foregoing Defendant County contends since they have no ownership or management interest and are not required to maintain the subject property, they do not owe the Plaintiff a duty and she therefore has no basis of recovering against them for personal injuries. Based upon the fact that the ownership of the subject property has been conclusively demonstrated by the deed and Defendant County’s lack of ownership or possession has been demonstrated by the Affidavit of Erik Denega, Defendant County asserts that the instant action should be dismissed against them. The County also seeks the Court impose sanctions against Plaintiff and award costs for frivolous conduct pursuant to 22 NYCRR 130-1.1. Defendant County asserts that the instant action is frivolous since it was commenced despite the County apprising Plaintiff’s counsel on “multiple occasions” that the County had no connection or relationship to the subject premises and absent that relationship the County could not be held liable for Plaintiff’s injuries. According to Defendant County the Plaintiff’s conduct in commencing the instant action is frivolous based upon the fact that they failed to conduct any due diligence in determining who is “responsible for the property in question” despite having sufficient time to conduct the investigation. In opposition Plaintiff contends that Defendant County has not satisfied their burden as they contend the only documentary evidence submitted is an affidavit of Commissioner Denega and a deed which “strictly goes to ownership of the property.” Plaintiff cites caselaw indicating that an affidavit is not documentary evidence pursuant to Civil Practice Law and Rules §3211(a)(1) and that the instant affidavit does not fall within the narrow exception under which affidavits are allowed. Specifically, the Plaintiff states that the Denega Affidavit does not establish the existence of bona fide genuinely documented evidence since there is no evidence attached to the affidavit as an exhibit. As to the second basis for dismissal, Civil Practice Law and Rules §3211(a)(7) the Plaintiff contends that the Plaintiff must be given every possible favorable inference and the determination at this stage is not whether the Plaintiff can prove the allegations but rather whether the facts as alleged fall within any cognizable legal theory. Plaintiff also opposes Defendant County’s application for costs and sanctions contending that there is nothing frivolous about pleading claims in the alternative, as it is a well-established practice in New York State jurisprudence. Further, Plaintiff avers that it would be malpractice on their part to fail to sue a responsible party and with the statutory time constraints with actions involving municipalities they have no choice but to proceed out of caution and name all municipalities they believe have some relationship to the subject property. According to Plaintiff they engaged in due diligence in determining the owner of the subject property and conducted a search by LEXIS, which demonstrated that there was an Industrial Development Agency connected to the subject property. The Plaintiff also includes the Mission Statement of the Town of Wallkill which indicates that they assist in the construction, equipping and maintenance of specific types of projects and facilities. Plaintiff filed a Reply on November 22, 2023, indicating that the Plaintiff had submitted untimely opposition to the instant motion to dismiss on September 23, 2023, when the opposition was due pursuant to Civil Practice Law and Rules §2214 on September 22, 2023. In reply Defendant County contends that a deed qualifies as documentary evidence for the purpose of a motion to dismiss and that the authenticity and validity of the deed submitted in support of their application was not raised by the Plaintiff in its opposition. According to Defendant County the deed submitted conclusively establishes the subject property is privately owned with no involvement by the County and the Plaintiff failed to offer any legal explanation of cognizable legal theory why the County would be involved with the maintenance of a privately owned commercial lot. As to the Affidavit of Denega, the County contends that it is not excluded under the caselaw cited by Plaintiff as the affidavit speaks in the negative and that absent an affirmation/affidavit from an employee of the County no other type of documentary evidence could demonstrate the County’s lack of involvement with the subject property. The Plaintiff also notes that the co-Defendant HUH Wallkill Town Center 2016 filed a Third-Party Complaint against ACPG management, LLC and a lessee, Price Chopper Operating Co., which demonstrates that the maintenance obligations of the subject property were the duty of the Third-Party Defendants. Also noted from the Third-Party Complaint is that co-Defendant HUH Wallkill Town Center 2016 admits they are the undisputed owner of the subject premises, a private parking lot. TOWN OF WALLKILL and TOWN OF WALLKILL INDUSTRIAL DEVELOPMENT AGENCY MOTION TO DISMISS (MOTION#2) Defendants Town of Wallkill [hereinafter Town] and the Town of Wallkill Industrial Development Agency [hereinafter IDA] assert that there is no dispute that they did not have either ownership, control, possession, or custody of the subject property and that as a result there is no duty that could flow to the Plaintiff that would sustain a cause of action against them. The Town and IDA argue that the official property deed for the subject property demonstrates that at the time of the incident and presently the owner of the subject premises is co-Defendant HUH Wallkill Town Center 2016, refuting the allegations against the Town and the IDA as set forth in the Verified Complaint. The Defendants Town and IDA also assert that co-Defendant HUH Wallkill Town Center 2016 also admitted within its Answer to the instant action that they owned the subject property at the time of the subject accident. Defendant Town provided an Affidavit of the Town Clerk, Louisa Ingrassia, which indicates that the Town was not in exclusive possession of the lot, that they did not make special use of the lot and had no maintenance obligations regarding the subject lot. Additionally, the Ingrassia Affidavit notes that there are no contracts on file with the Town as a party concerning the subject property or any lands or premises that abut the property. Similarly, Defendant IDA provided an Affidavit from Mark Coyne, it’s Chairman, that indicates that at the time of the subject accident the IDA was not in exclusive possession of the lot, they did not make special use of the lot and that they also had no maintenance obligations as to the lot. Additionally, in the Coyne Affidavit it is noted that Defendant IDA is not a party to any contract or agreement concerning the subject property or any lands or premises which abut it and they have not entered into any lease agreements, special use agreements, access agreements, service agreements or agreements for maintenance of the subject property. The Town and the IDA also argue in their motion to dismiss that all cross claims asserted against them by the co-Defendant HUH Wallkill Town Center 2016 should be dismissed for the same reason that the instant Complaint should be dismissed, the lack of evidence of ownership, possession, or control over the subject parking lot. According to the Town and the IDA no evidence has been provided that demonstrates that either the Town or the IDA at the time of the subject accident had ownership, possession, or control over the subject parking lot. Further, the Town and the IDA both assert that they have provided unrefutable evidence through the Affidavits of Ingrassia and Coyne that neither of the Defendants were a party to any contract or agreement with the co-Defendant HUH Wallkill Town Center 2016 or anyone else in relation to the subject property. Plaintiff did not file any specific opposition to Defendant Town or Defendant IDA’s motion to dismiss. However, Plaintiff’s opposition to Defendant County’s motion to dismiss contains arguments regarding Defendant IDA including a LEXIS search which indicates that Defendant IDA was a borrower of a mortgage in relation to the subject location in 2020. ANALYSIS Defendants County, Town and IDA filed the instant Notices of Motion seeking dismissal of the Complaint and any cross claims pursuant to Civil Practice Law and Rules §§3211(a)(1) and (a)(7). Annexed to Defendant County’s motion is an Affirmation of counsel, a copy of the Summons and Complaint, a copy of the Notice of Claim filed by Plaintiff against the County of Orange, a copy of Defendant’s letter to Plaintiff’s counsel dated August 9, 2022, an Affidavit of Eric Denega — Commissioner of Public Works for the County of Orange, a letter to Plaintiff’s attorney from Defendant’s attorney dated November 21, 2022, a letter to Plaintiff’s attorney from Defendant’s attorney dated July 28, 2023, a copy of the deed for the subject property and the co-Defendant, HUH Wallkill Town Center 2016′s, Answer with cross claims. Annexed to Defendants Town and IDA’s motion are an Affirmation of counsel, a copy of the Summons and Complaint, the co-Defendant, HUH Wallkill Town Center 2016′s, Answer with cross claims, a copy of the deed for the subject property, an Affidavit of Town Clerk of the Town of Wallkill, Louisa Ingrassia, and the Affidavit of IDA Chairman, Mark Coyne. In opposition Plaintiff has provided a LEXIS search dated September 12, 2023, days before their opposition was filed and months after the instant action was commenced. The Lexis search provided does not demonstrate ownership of the subject property by the Town of Wallkill or the County of Orange or any relationship between the Defendants and the subject property. However, the LEXIS search does reference a mortgage by Defendant IDA associated with the subject property with a recording date of June 19, 2020, and a contract date of April 14, 2020. Plaintiff has also included the Mission Statement of Town of Wallkill IDA and references same in in its opposition. To succeed on a motion to dismiss pursuant to Civil Practice Law and Rules §3211(a)(1) the documentary evidence must utterly refute plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. See Springer v. Almontaser, 75 AD3d 539 (2d Dept 2010); Fontanetta v. John Doe 1,73 AD3d 78 (2d Dept 2010); Bronxville Knolls v. Webster Town Ctr. Partnership, 221 AD2d 248 (1st Dept 1995). The motion will be granted only if the documentary evidence resolves all factual issues in a manner that conclusively disposes of the plaintiff’s claim. See Fontanetta v. John Doe 1, 73 AD3d 78 (2d Dept 2010). “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity.” Id at 86. “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendement of CPLR 3211 (a)(1).” JA Lee Elec., Inc. v. City of N.Y., 119 AD3d 652, 653 (2d Dept 2014). In considering a motion to dismiss for failure to state a cause of action pursuant to Civil Practice Law and Rules §3211(a)(7) the pleadings must be liberally construed, and the sole criterion is whether from within the complaint’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law. The facts pleaded are to be presumed to be true and are to be accorded every favorable inference. See Gershon v. Goldberg, 30 AD3d 372 (2d Dept 2006); Fitzgerald v. Federal Signal Corp., 63 AD3d 994 (2d Dept 2009). When a party moves to dismiss a complaint under this sub-section the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action, and, in considering such a motion the court must determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations is not part of the calculus. See Sokol v. Leader, 74 AD3d 1180 (2d Dept 2010). However, “[w]here evidentiary material is submitted and considered in a motion to dismiss a complaint pursuant to Civil Practice Law and Rules §3211(a)(7) the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one.” Coalition of Landlord v. S & A Neocronon, Inc., 2024 WL462255 (2d Dept February 7, 2024). The Court also recognizes plaintiff’s right to seek redress, and not have the courthouse doors closed at the very inception of the action, where the pleadings need meet only a minimal standard necessary to resist dismissal of a complaint. See Campaign for Fiscal Equity v. State of New York, 86 NY2d 307 (1995). The Court has reviewed the complaint and Defendants County of Orange and Town of Wallkill have both demonstrated through a copy of the deed, the supporting affidavits of representatives of the parties (which this Court considered since they are based upon review of business records), the Answer of co-Defendant HUH Wallkill Town Center 2016 and the newly filed Third-Party Complaint filed by co-Defendant HUH Wallkill Town Center 2016 that neither the County of Orange or Town of Wallkill have any ownership, possessory or contractual relationship with the subject parking lot. Defendant IDA also demonstrated through the deed for the subject property that they were not the owners of the subject property at the time of the alleged accident. However, the Plaintiff’s Lexis search, which was obtained after the commencement of the matter and is therefore not indicative of Plaintiff’s due diligence, does demonstrate that Defendant IDA had some relationship with the property beginning in April 2020 which was not addressed in the Coyne Affidavit or refuted by any of the documentary evidence submitted by Defendant IDA in support of their motion. Based upon that documentation, Defendants County of Orange and Town of Wallkill’s motions are granted as to the Complaint and the cross claims alleged against them by co-Defendant HUH Wallkill Town Center 2016. However, based upon the lack of clarity as to Defendant IDA’s possible borrower status/relationship with the subject property the evidence submitted by Defendant IDA does not entirely refute the existence of a relationship with co-Defendant HUH Wallkill Town Center 2016 as to the subject property. As such, Defendant IDA’s portion of the motion to dismiss is denied. Turning to the application for sanctions by all moving Defendants pursuant to 22 NYCR 130-1.1, the Court finds the Plaintiff’s conduct in commencing the instant matter lacks merit but was not frivolous at the time of commencement. The court, in its discretion, may award to any party in any proceeding before the court, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct. In addition to or in lieu of awarding costs, the court may impose financial sanctions upon any party or attorney in a proceeding who engages in frivolous conduct. Conduct is frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; or, it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false. See 22 NYCRR 130-1.1; See also Del Vecchio v. Del Vecchio, 219 AD3d 572, 578 (2d Dept 2023). The Court finds that the action of the Plaintiffs in commencing the instant action against the County of Orange, Town of Wallkill and Town of Wallkill IDA is not entirely without merit in law and was not to harass or maliciously injure the Defendants. Rather, the Plaintiff in commencing the instant action did not agree with Defendants’ assertions that they each had no ownership or responsibility for maintenance of the property. Defendants in making the instant application are assuming that Plaintiff never engaged in any due diligence in determining the ownership and responsibility for the subject property merely because the Plaintiff did not respond to Defendant County’s counsel’s letters and demands for a withdrawal. Plaintiff has asserted that they engaged in a search on Lexis as to ownership and based upon that search they commenced the instant action against all of the current defendants. The Lexis search was clearly not comprehensive in determining the ownership of the property, but Plaintiff correctly notes that their time to seek action against a municipality is limited and based upon their time restriction they engaged in a limited search, which does not rise to the level of a lack of due diligence. Based upon the foregoing, Defendants motions for sanctions and costs are denied. In arriving at this decision the Court has reviewed, evaluated, and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority. Accordingly, it is hereby ORDERED that the Defendant COUNTY OF ORANGE’s motion is granted in part and denied in part consistent with the instant Decision and Order; and it is further ORDERED that the Defendant TOWN OF WALLKILL and TOWN OF WALLKILL INDUSTRIAL DEVELOPMENT AGENCY is granted in part and denied in part consistent with the instant Decision and Order; and it is further ORDERED that the matter is scheduled for a virtual status conference as to Defendants TOWN OF WALLKILL INDUSTRIAL DEVELOPMENT AGENCY, Defendant HUH WALLKILL TOWN CENTER 2016 and any appearing Defendants on the newly filed Third-Party Complaint on APRIL 18, 2024 at 11:00am, a TEAMS link will be provided by the Court. Dated: February 27, 2024
