The following papers numbered 1- 3 were read and considered in connection with Defendant Bild Architecture, LLC's (hereinafter "Bild") Notice of Motion (Motion Seq. No. 1) for an order pursuant to Civil Practice Law and Rules § 3211 (a) (1) and (a) (7) dismissing plaintiff's complaint against Bild in its entirety, with prejudice, and for such other relief as this court should deem just and proper:

This action stems from an incident wherein plaintiff, an invited guest at an apartment located at 431 DeKalb Avenue, Brooklyn, NY, encountered what she believed to be a dangerous, life-threatening, and emergency situation and required a means of egress from said apartment. Plaintiff alleges that because no safe means of egress existed, she was forced to exit through a [*2]window, resulting in her falling multiple stories to the ground. Plaintiff argues that defendant Bild owed her a duty to maintain and keep the premises in a safe and proper condition and to provide her with a safe, proper, and alternative means of egress from the apartment.

Plaintiff commenced the instant action by the filing of a summons and verified complaint on December 30, 2024, and an amended verified complaint on December 31, 2024. Bild was served with the summons and amended verified complaint on December 31, 2024 at 300 Tice Boulevard, Suite 279, Woodcliff Lake, NJ 07677.

Defendant Bild's counsel filed the instant pre-answer motion to dismiss along with a memorandum of law and an attorney affirmation in support of the application. Bild argues that its documentary evidence proves that the defendant's architectural plans and specifications were deemed compliant with the applicable laws, rules and regulations of the New York City Department of Buildings and accordingly, Bild did not breach any duty to the plaintiff.

In opposition, plaintiff asserts that she has plead a cognizable legal theory and that the Court must give the amended complaint a liberal construction and accept the allegations as true. Further, plaintiff argues that defendant Bild failed to provide adequate documentary evidence to show that the structure, as it existed on the date of the accident, was built in accordance with the drawings it submitted.

In reply, Bild submitted an affirmation by the architect in lieu of any further documentary evidence alleging that Bild's involvement in the project ended once its drawings were approved by the New York City Department of Buildings. Further, Bild argues that it had no involvement in the construction and, thus, no responsibility for deviations in the structure as built from its drawings.

In considering a motion to dismiss for failure to state a cause of action pursuant to Civil Practice Law and Rules § 3211 (a) (1), a dismissal is warranted only if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." See Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); see Leon v Martinez, 84 NY2d 83, 88 (1994). Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. See Kolchins v Evolution Mkts., Inc., 31 NY3d 100, 106 (2018). The Court finds that while the documents submitted by defendant Bild (namely, architectural plans, inspection reports, and a New York City Department of Buildings Certificate of Occupancy (NYSCEF Doc. Nos. 17-20)) do qualify as documentary evidence, the documents do not utterly refute the plaintiff's factual allegations. In their reply, Bild submits only an affirmation by the architect indicating that Bild had no involvement in the construction of the property in question subsequent to the issuance of a certificate of occupancy. "Neither affidavits, deposition testimony, nor letters are considered 'documentary evidence' within the intendment of CPLR 3211 (a) (1) (see Suchmacher v. Manana Grocery, 73 AD3d 1017, 900 N.Y.S.2d 686; Fontanetta v. John Doe 1, 73 AD3d at 85—87, 898 N.Y.S.2d 569)." See Granada Condo. III Ass'n v. Palomino, 78 AD3d 996, 997. Notably absent are any documents bearing on the scope and extent of Bild's contractual obligations for the project.

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 [*3]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). The Court finds that the causes of action stated in the amended complaint adequately manifest cognizable theories of negligence and reckless conduct.

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).

Upon review of the foregoing, Bild's Motion to Dismiss is 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 Defendant's Notice of Motion to Dismiss (Motion Seq. No. 1) is denied in its entirety; and it is further

ORDERED that the parties are to appear for a status conference on Thursday, October 16, 2025 at 10:00 a.m.