This action was commenced with the filing of Plaintiff's summons and complaint on September 15, 2023 (Doc. No. 1). The action seeks damages and equitable relief on various property tort damage grounds arising from an alleged improper diversion of water onto plaintiff's property by the defendants from a pipe placement along/under the private intersecting roadway(s) where the parties live in relatively close proximity to each other in the Town of Grand Island, New York.

Defendants filed a timely pre-answer motion to dismiss under CPLR Rule 3211 (a) (1) and 3211 (a) (7) on October 30, 2023 (Doc. No. 2), with supporting attorney and client affirmations, memorandum of law and exhibits (Doc. Nos. 3-8). The motion seeks dismissal of plaintiff's complaint fundamentally on the grounds that a certain "Private Road Maintenance Agreement" (the "Maintenance Agreement") executed and entered into in October 1990 by the predecessor title owners of the real properties owned by the parties along Prospect Avenue (plaintiff Rapp) and Summer Place (defendants Wild) and the pre-Maintenance Agreement historical property maintenance activities over those two roads since circa the 1970's/1980's (there are conflicting references to the dates going back in time relative to the shared maintenance of these two private roads) completely vitiates any plausible legal or equitable causes of action that could be made against the defendants.

Plaintiff opposed the motion with an attorney affirmation which was also filed in support of a cross-motion to amend the complaint under CPLR Rule 3025 (b) (Doc. Nos. 10-12 filed on 2/16/2024). The cross-motion was opposed by Defendants with affirmations of counsel, defendant Justin Wild, and a non-party/nearby property owner, along with additional exhibits and memorandum of law. (Doc. Nos. 13-18.)

The motions were put before the Court and heard by the Hon. Craig D. Hannah, J.S.C., the assigned IAS Judge at the time of their argument on March 13, 2024. At the conclusion of argument Justice Hannah reserved decision, and shortly thereafter was elevated to the Fourth Department Appellate Division. This action was then transferred to the undersigned as part of [*2]the reallocation of Justice Hannah's pending actions. The transcript of the March 13th argument has been received and reviewed.

For the sake of content orderliness and setting up the framework for the dispositional handling of the motions, the cross-motion to amend the complaint will be addressed first and is GRANTED a fortiori. By reason of the pre-answer "pleading" stage that the case was in at the time the proposed amended complaint was filed and before the motion to dismiss was decided (Rule 3211 [f]), the filing was made as a matter of right pursuant to CPLR Rule 3025 (a). There was (and is) no need for a motion under 3025 (b) for leave to amend because no "responsive pleading" has yet been filed which is the triggering event to determine when an amended pleading can be filed as a matter of right or need to be sought by leave of court. See CPLR Rule 3025, Commentary 2021, C3025:2, citing Roam Capital, Inc. v. Asia Alternatives Management LLC, 194 AD3d 585 (1st Dept. 2021), to cogently recite the applicable procedural posture allowing the amended pleading as a matter of right under these circumstances. ("Because plaintiff still had time to amend the complaint as of right under CPLR 3025(a) when it, instead, made a motion to amend under CPLR 3025(b), the court deemed plaintiff's proposed amended complaint submitted with its motion to be the operative pleading. Defendant claimed that plaintiff waived its ability to amend as of right under CPLR 3025(a) by making a motion seeking permission to amend under CPLR 3025(b), but the First Department rejected the contention.") See also Singe v. Bates Troy, Inc., 206 A.D3d 1528, 1530 (3rd Dept. 2022). Correspondingly, the Defendants' motion to dismiss is deemed to be addressed to the amended complaint as the "operative pleading." Singe at 1530.

Moving on to the Rule 3211 (a) (1) and (a) (7) branches of Defendants' motion, both are DENIED. Preliminarily, this is a pure motion to dismiss . . . the "Relief Demanded and Grounds Therefor" section of the notice of motion does not seek or ask the Court to consider the motion as one for summary judgment ^[FN1] nor was it argued and submitted to the Court (J. Hannah) "after adequate notice to the parties" that it would be treated as such under Rule 3211 (c).

As presented, the motion must be examined and decided under the well-established scriptures of law applicable to 3211 motions, to wit, "[w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (internal citations omitted)." Leon v. Martinez, 84 NY2d 83, 87-88 (1994). See also, Bane v. Lease-N-Save Corp., (__AD3d__ [4th Dept.] decided 6/14/2024). Clearly, the causes of action in plaintiff's complaint are sufficiently pleaded or at a minimum can be viewed as reciting a "cognizable legal theory," at this stage of the action to defeat the motion to dismiss under 3211 (a) (7).

With respect to the Maintenance Agreement being sufficiently definitive of the rights, duties, responsibilities and obligations of the parties with respect to the subject matter of the complaint, if any recited therein are enforceable in a quantifiable manner to begin with, said Agreement does not satisfy the threshold of a documentary evidence defense sufficient to meet the dismissal requirements of 3211 (a) (1). The Fourth Department has enunciated the threshold of the defense clearly and repeatedly:

"A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted if the documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]' " (Baumann Realtors, Inc. v. First Columbia Century—30, LLC, 113 AD3d 1091, 1092, 978 N.Y.S.2d 563; see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190) . . . and denied if it fails " to utterly refute ... plaintiff's allegations or conclusively establish a defense as a matter of law" (Sabre Real Estate Group, LLC v. Ghazvini, 140 AD3d 724, 725, 35 N.Y.S.3d 109; see Maurice W. Pomfrey & Assoc., Ltd. v. Hancock & Estabrook, LLP, 50 AD3d 1531, 1532, 862 N.Y.S.2d 217)." Lots For Less Stores, Inc. v. Integrated Properties, Inc., 152 AD3d 1181, 1182-1183 (4th Dept. 2017); University Hill Realty, Ltd. v. Akl, 214 AD3d 1467 (4th Dept. 2023).

At this stage of the action, the Agreement falls short of meeting either of those legally mandated criteria to dismiss the complaint pursuant to a 3211 (a) (1) motion.

Submit order on notice.