The e-filed papers bearing NYSCEF Doc. Nos. 38-46, were read on the motion of the [*2]defendant LJ Insurance Agency Inc. ("LJ Insurance"), pursuant to CPLR 3211 seeking dismissal of all claims and cross-claims asserted against it.

I. BACKGROUND

The Plaintiff Delories Thomas (the "Plaintiff") commenced this action sounding in negligence in connection with an alleged accident that occurred at the premises located at 117-01 127th Street, Queens, New York (the "Premises") when the Plaintiff fell due to a rolled-up rug/carpet (Doc. No. 44 ¶ 3). In her complaint, the Plaintiff alleges, among other things, that LJ Insurance owned, operated, maintained, managed, and/or controlled the Premises. The Plaintiff further alleges, that in March 2021, "while [P]laintiff was lawfully entering the premises, [P]laintiff was caused to fall and be injured due to a rolled-up rug/carpet by reason of the negligence, willful, wanton and gross negligence, carelessness and want of proper care of the defendants, their agents, servants and/or employees" (Doc. No. 40 ¶ 25).

In support of its motion, LJ Insurance submits the affidavit of the CEO of the corporation (see Doc. No. 42; the "Affidavit"). The Affidavit disclaims any relationship to the Premises except for "potentially having brochures for LJ Insurance located in the [P]remises" (Affidavit ¶ 12). LJ Insurance also submits a letter from its counsel outlining arguments for dismissal (see Doc. No. 43).^[FN1]

II. DISCUSSION

As a preliminary matter, the Court notes that although LJ Insurance moves pursuant to CPLR 3211, LJ Insurance fails to specify any of the eleven grounds contained in CPLR 3211, upon which it seeks dismissal. Pursuant to CPLR 2214 the "notice of motion shall 'specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor"' (Abizadeh v Abizadeh, 159 AD3d 856, 857 [2d Dept 2018], quoting CPLR 2214[a]). The "court is not required to comb through a litigant's papers to find information that is required to be set forth in the notice of motion" (Abizadeh, 159 AD3d at 857). Nevertheless, here, in the exercise of its discretion, and in the absence of any prejudice, the Court will consider the motion on its merits, and presume, as referenced by the Plaintiff, that the motion is being made pursuant to either CPLR 3211[a][1] or [a][7] (see Doc. No. 44 ¶¶ 5 and 11) (see also Abizadeh, 159 AD3d at 857 [holding that although the plaintiff's supporting papers supplied the missing information, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion on the ground that the plaintiff's notice of cross motion was deficient]; Matter of LiMandri, 171 AD2d 747, 747 [2d Dept 1991] [holding that in the absence of prejudice, a movant's "failure to state the ground in the notice of motion should be disregarded as a technical deficiency in the interests of justice and expediency"]). The Court now turns to the merits of the dismissal motion under both CPLR 3211(a)(1) and (a)(7).

A. CPLR 3211(a)(1)

"When moving for dismissal pursuant to CPLR 3211 (a)(1), the motion will only be granted if the party submits documentary evidence that utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law" (Porat v Rybina, 177 AD3d 632, 633 [2d Dept 2019]). "If the evidence submitted in support of the motion is not 'documentary,' the motion must be denied" (Phillips v Taco Bell Corp., 152 AD3d 806, 807 [2d Dept 2017]). It is well settled that affidavits and letters are not documentary evidence under CPLR 3211[a][1] (see Porat v Rybina, 177 AD3d at 633; 7 Mansion, LLC v Calvano, 226 AD3d 730, 732 [2d Dept 2024]; Maursky v Latham, 219 AD3d 473, 475 [2d Dept 2023]; J.A. Lee Elec., Inc. v City of New York, 119 AD3d 652, 653 [2d Dept 2014]; Granada Condominium III Ass'n v Palomino, 78 AD3d 996, 997 [2d Dept 2010]).

Here, the only material submitted by LJ Insurance in support of its motion was the Affidavit and a letter from its counsel (Doc. Nos. 42 and 43), neither of which constitute documentary evidence within the meaning of CPLR 3211[a][1] (see Granada Condominium III Ass'n v Palomino, 78 AD3d at 997). Accordingly, LJ Insurance's motion, to the extent sought under CPLR 3211(a)(1), must be denied (see Phillips v Taco Bell Corp., 152 AD3d at 807).

B. CPLR 3211(a)(7)

"When a party moves to dismiss a complaint pursuant to CPLR 3211 (a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-81 [2d Dept 2010]). "If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

In determining "a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005] [internal citation omitted]). Applying this standard, as explained below, the Court finds that the Plaintiff's allegations of negligence survive LJ Insurance's motion to dismiss under CPLR 3211(a)(7).

"To prevail on a cause of action alleging negligence, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages" (Pasquaretto v Long Is. Univ., 106 AD3d 794, 795 [2d Dept 2013]). "A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition. As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" (Wilson v Rye Family Realty, LLC, 218 AD3d 836, 837 [2d Dept 2023] [internal citations omitted]; see also Guzov v Manor Lodge Holding Corp., 13 AD3d 482, 483 [2d Dept 2004] ["The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it"]). Here, affording the complaint a liberal construction and taking the allegations of the complaint as true, the Plaintiff sufficiency alleges a cognizable claim for negligence against LJ Insurance.

"Although a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), an affidavit submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless it establishes conclusively that the [*3]plaintiff has no cause of action" (Kisla v Jefferson, 237 AD3d 1082, 1083 [2d Dept 2025]). Here, as set forth below, given the deficiencies of the Affidavit submitted by LJ Insurance, this is not one of the rare instances that warrants dismissal under CPLR 3211 (a)(7) when considering an affidavit submitted by a defendant.

In the Affidavit, LJ Insurance disclaims all interest, control, affiliation or relationship with the Premises except for "potentially having brochures for LJ Insurance located in the premises" (Doc. No. 42 ¶ 12). LJ Insurance also disclaims all affiliation with defendant LJ Hub Inc (id. at ¶ 15). However, a simple Google Maps search of the Premises calls into question some of these assertions and further demonstrates that the sworn statements that "LJ Insurance has nothing to do with the premises" and that the "extent" of the "relationship" of LJ Insurance with the Premises is "potentially having brochures" there—are unsupported. The Google Maps images of the Premises submitted by the Plaintiff (Doc. No. 45)^[FN2] show storefront signage side by side for "LJ HUB" and "LJ INSURANCE AGENCY" —the larger and more prominent of the two signs being for LJ Insurance. Moreover, below the LJ Insurance sign are related insurance signs saying "AUTO/HOME BUSINESS TLC" and "FREE QUOTES." Indeed, the location listed on the sign to obtain the "FREE QUOTES" is the address of the Premises—"117-01 127th STREET"—and not the address identified in the Affidavit as the location of LJ Insurance's place of business—"127-03 Rockaway Blvd., South Ozone Park" (Doc. No. 42 ¶ 1). Finally, in the storefront window there is a prominent sign that says "@LJINSURANCE" and there is a large sidewalk sign displaying the name "LJ INSURANCE AGENCY."

In reply, LJ Insurance ignores the Google Maps images demonstrating LJ Insurance's strong footprint at, and relationship to, the Premises. Instead, through its counsel's affirmation, LJ insurance reaffirms some of its questionable, unsupported, and conclusory claims, including that "LJ Insurance has nothing to do with the premises"; "LJ Insurance has never operated at the premises"; "LJ Insurance has never controlled the premises"; "LJ Insurance has never conducted business at the premises"; "LJ Insurance has no relationship with the premises"; and "LJ Insurance has no affiliation with the premises" (Doc. No. 46 ¶ 5).

In short, the Affidavit does not establish conclusively that LJ Insurance did not "occupy" or "control" the Premises or put the Premises "to a special use or derive a special benefit from it" (Guzov v Manor Lodge Holding Corp., 13 AD3d at 483). Indeed, affording the pleadings a liberal construction, taking the allegations of the complaint as true and providing the Plaintiff the benefit of every possible inference "it is clear that" the "complaint state[s] a cause of action," against LJ Insurance for negligence and that LJ Insurance's "submissions did not 'establish conclusively that [the plaintiff] has no cause of action'" (Clarke v Laidlaw Tr., Inc., 125 AD3d 920, 921-922 [2d Dept 2015], quoting Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [2d Dept 2012]). As this matter comes before the Court on a motion to dismiss pursuant to CPLR 3211(a)(7), "the case is not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and [the Plaintiff] has . . . pleaded a viable cause of action" (Miglino v Bally Total Fitness of Greater New York, Inc., 20 NY3d 342, 351 [2013]).

Based on the foregoing, it is hereby:

ORDERED that LJ Insurance's motion is denied.

This constitutes the Decision and Order of the Court.