The following papers were read and considered on the aforementioned motion submitted on May 30, 2024: NYSCEF Doc Nos. 30 to 40, inclusive. DECISION AND ORDER In this case, the Defendant Metro by T-Mobile (“Defendant Metro”) moves to dismiss the complaint against it based on documentary evidence under CPLR §3211(a)(1). Plaintiff alleges in this case that she was assaulted by a store employee while she was shopping at a retail cell phone store operated by Defendant MGM SIInc. Oh this motion. Defendant Metro submits an agreement entitled “Exclusive Indirect Dealer Agreement” (“the agreement”) between it and “Licensed Products, L.L.C.” and “Approved Affiliates.” (NYSCEF Doc No. 32). The agreement is signed on behalf of Licensed Products, L.L.C. The document, while redacted in part, appears to include Defendant MGM SI Inc. as an approved affiliate or dealer of “Licensed Products, L.L.C.”, which the agreement also describes in places as “Parent.” The agreement specifically provides that Defendant MGM SI Inc. is authorized to sell T-Mobile services and equipment at approved storefront locations but is not an agent, franchisee, partner or employee of Defendant Metro. Defendant Metro argues that the express language of the agreement conclusively establishes that it cannot be liable for the alleged assault by a store employee. For the reasons set out below, the Court disagrees and denies the motion. A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted “only where documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.”‘ (Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 326,(2002); see also Norment v. Interfaith Ctr. of New York, 98 A.D.3d 955, (2012)). The motion may be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim. (Fontanetta v. Doe, 73 A.D.3d 78, 83-84, (2 Dept. 2010)). In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and essentially undeniable. (Fontanetta, supra, at 84). Written contracts, such as the agreement involved in this case, and similar documents reflecting out-of-court transactions typically are considered to be included among the categories of “undeniable” documents that may be considered on a motion under this subsection. (See Xu v. Van Zwienen, 212 A.D.3d 872, 874 (2d Dept. 2023)). Section 3211(a)(1) was intended to apply to a defense based on on the terms of a written contract. (Fontanetta v. Doe, 73 A.D.3d 78, 84, 898 N.Y.S.2d 569 (2010) (internal citations omitted)). In this case, the agreement submitted by Defendant Metro, although it contains significant redactions, appears to spell out terms of the relationship between the Defendant Metro and Defendant MGM SI Inc. It provides that there is no franchise, agency or employment relationship between the parties. However, the Court declines to dismiss the case under CPLR §3211(a)(1) based upon the agreement. Preliminarily, it is not known at this juncture, where discovery has not taken place, whether the terms of the agreement were followed or enforced and to what extent. For this reason, the “documentary evidence” presented does not “utterly refute” plaintiff’s factual allegations or “conclusively” establish a defense as a matter of law. The motion also must be denied because, without opining on how the issue may be ultimately resolved in this case, it appears possible that Defendant Metro could be liable under the theory of apparent authority. Plaintiff argues that, based on Plaintiff’s reasonable perceptions of the actions of Metro as principal or of its intentions to grant power to an agent to act on behalf of the principal, it could be liable without regard to the agreement, Evidence of public representations and reliance may support a finding of apparent or ostensible agency. (Stern v. Starwood Hotels & Resorts Worldwide, Inc., 149 A.D.3d 496, 497 (1st Dept. 2017)). Apparent authority arises where a third party reasonably infers such a relationship. (Stern v. Starwood Hotels & Resorts Worldwide, Inc., supra, at 497). Essential to the creation of apparent authority are words or conduct of the principal, communicated to the third party. The agent cannot by his own acts imbue himself with apparent authority. Rather, the existence of apparent authority depends upon a factual showing of some misleading conduct on the part of the principal — not the agent. (See Lisi v. New York Ctr. for Rehab. & Nursing, 225 A.D.3d 590, 591(2d Dept. 2024)). Plaintiff, in support of its apparent authority argument, points to a “screen shot” of a page from the “Metro by T-Mobile” website, which lists the store where the incident allegedly occurred under an “all locations” link or heading, referring to the store as “Metro by T-Mobile 268 New Dorp Lane.” The same “Metro by T-Mobile” website page includes a relatively large display advertising the “featured promotions at Metro by T-Mobile 268 New Dorp Lane” and also provides information on the “in-store services at Metro by T-Mobile 268 New Dorp Lane.” From all of these circumstances, a reasonable person could conclude that the store in question was a “Metro by T-Mobile” enterprise, not an independent entity selling T-Mobile equipment. From this web content, there exists an argument that Defendant Metro held the store out to the public as a Metro by T-Mobile operation. While Defendant Metro argues that it is clear from review of the agreement and the website page that the store was an “independent authorized retailer,” the Court disagrees that the website makes such an “independent” relationship clear. Although the website page does include the wording “authorized retailer” regarding the store — the word “independent” does not appear. Moreover, the printing of the words “authorized retailer” is quite small and very faintly colored, and the language is placed in a non-obvious location. This language could be easily overlooked by a viewer. Regardless of the type and size of the printing, the Court also finds that inclusion of the “authorized retailer” language would not necessarily eliminate the possibility that a member of the public could be led to reasonably believe that the store was an enterprise of Defendant Metro, based on the other content on the website page, as described in the preceding paragraph. There is the potential at this point in the case that Defendant Metro’s conduct of posting these materials on their website could be seen as “misleading conduct on the part of the principal” that possibly could have led Plaintiff to think that she was dealing with Defendant Metro. There were no notices posted indicating that the store was owned and operated by MSG SI INC and not T-Mobile. If it is ultimately found that Defendant Metro imbued MGM SI INC with apparent authority by its actions, it may be liable for the employee’s alleged assault, irrespective of the agreement. (See Baldassarre v. Morwil Supermarket Inc., 203 AD 2d 221 (2d Dept)). For all of these reasons, the Court finds that Defendant Metro has not met its significant burden of showing that the agreement “utterly” refutes Plaintiffs allegations and “conclusively” establishes a defense. To reiterate, however, in so ruling, the Court in no way opines on whether the theory of “apparent authority” will ultimately be found to apply in this case, nor does it reach any conclusions regarding the proper construction of the agreement on which Defendant Metro bases its motion, or its future impact in the litigation, if any. It merely rules that Defendant Metro has not established its entitlement to have the case dismissed pursuant CPLR §3211(a)(1) based upon the document upon which it relies. Dated: June 7, 2024
