New York’s Appellate Division, Second Department has reversed the denial of a motion to dismiss in lieu of answering and dismissed a personal injury action on behalf of Sterling Mets, L.P.
In Ruffino v. New York City Transit Authority, et. al. (Index Number 23273/06) the plaintiff commenced the instant action against Sterling Mets, L.P. (hereinafter “Sterling”), among others, to recover damages for personal injuries allegedly sustained by her when she tripped and fell over an uneven piece of wood while walking on a boardwalk between a Long Island Railroad train station and a New York City Transit Authority subway station on her way to Shea Stadium. Sterling moved pursuant to Civil Practice Law and Rules (“CPLR”) 3211(a)(1) and (7) to dismiss the complaint and all cross claims insofar as asserted against it, contending, inter alia, that it did not own, occupy, control, or make special use of the boardwalk. The plaintiff opposed the motion, contending, among other things, that Sterling did, in fact, make special use of [*2] the boardwalk and that it was obligated to provide her with a safe means of ingress to and egress from Shea Stadium. The Supreme Court denied Sterling’s motion to dismiss, finding, in effect, that Sterling failed to establish that it did not have a duty to maintain the boardwalk in a safe condition even if it did not own, occupy, or control the boardwalk.
The Appellate Division disagreed and adopted Sterling’s arguments of dismissal “[I]n determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail. The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory. However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one. Likewise, to succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Morris v. Morris, 306 AD2d 449, 451 [emphasis added]).
Applying the foregoing standards to the Ruffino case, the Appellate Division, held that Sterling’s motion to dismiss the plaintiff’s complaint and all cross claims insofar as asserted against it should have been granted.
Here, Sterling submitted evidentiary material in support of its motion to dismiss demonstrating that the boardwalk is a public place thoroughfare. As correctly observed by Sterling, “[t]he use by [Sterling’s] customer[s] of [a] public [boardwalk] is not a special benefit giving rise to a special use” (Minott v. City of New York, 230 AD2d at 720 [internal quotation marks omitted]; see Lauer v Great S. Bay Seafood, 200 AD2d 471, 472). While the plaintiff maintains that Sterling derived a special benefit from the boardwalk since the boardwalk allegedly was constructed specifically to connect Shea Stadium to the nearby Long Island Rail Road train station and New York City Transit Authority subway station, the plaintiff offered no evidentiary support for that conclusory allegation.
The Appellate Division also held that there was no merit to plaintiff’s other arguments that Sterling had a duty to maintain the boardwalk in a safe condition because the boardwalk provided a means if ingress and egress from Shea Stadium, since, again, the evidentiary material submitted by Sterling and left unrefuted by the plaintiff established that Sterling did not own, occupy, or control the boardwalk (see Haymon v. Pettit, 9 NY3d 324; cf. Gallagher v. St. Raymond’s R.C. Church, 21 NY2d 554).
Attorneys of Record (for defendant Sterling Mets, L.P.): Jarett Warner and Carla Varriale of Havkins, Rosenfeld, Ritzert & Varriale