Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 15, 2026

2024-13486, (Index No. 535635/23)

Francesca E. Connolly, J.P.

Valerie Brathwaite Nelson

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants William James Cudney, Elizabeth Zehe, Gabriel Hartman Stein, and Ariel Celeste Azoff appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated October 31, 2024. The order denied those defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and all cross-claims insofar as asserted against them.

ORDERED that the order is affirmed, without costs or disbursements.

On October 2, 2023, the plaintiff allegedly was injured while working at an elevated height at premises owned by the defendants William James Cudney, Elizabeth Zehe, Gabriel Hartman Stein, and Ariel Celeste Azoff (hereinafter collectively the owners). Thereafter, the plaintiff commenced this action against the owners and the defendant Co Adaptive Building, LLC (hereinafter Co Adaptive), a contractor hired by the owners to perform certain renovations at the premises, alleging violations of Labor Law §§ 200, 240(1), and 241(6) and common-law negligence. Co Adaptive asserted cross-claims against the owners for contribution and common-law and/or contractual indemnification. Prior to discovery, the owners moved pursuant to CPLR 3211(a) to dismiss the complaint and all cross-claims insofar as asserted against them. In an order dated October 31, 2024, the Supreme Court denied the motion. The owners appeal.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, a court must "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" (Leon v Martinez, 84 NY2d 83, 87-88; see Davila v Orange County, 215 AD3d 632, 633). "[W]here evidentiary material is submitted and considered on a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), the question becomes whether the proponent of the pleading has a cause of action, not whether the proponent has stated one" (Cajigas v Clean Rite Ctrs., LLC, 187 AD3d 700, 701; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "[A]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Sokol v Leader, 74 AD3d 1180, 1182 [internal quotation marks omitted]; see Atlasman v Korol, 238 AD3d 826, 828). "Dismissal should not eventuate unless it has been shown that a material fact as claimed by the proponent to be one is not a fact at all, and unless it can be said that no significant dispute exists [*2]regarding it" (Cajigas v Clean Rite Ctrs., LLC, 187 AD3d at 701; see Guggenheimer v Ginzburg, 43 NY2d at 275).

"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" (Maursky v Latham, 219 AD3d 473, 475 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86; see Maursky v Latham, 219 AD3d at 475). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (J.A. Lee Elec., Inc. v City of New York, 119 AD3d 652, 653 [internal quotation marks omitted]; see Maursky v Latham, 219 AD3d at 475).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every favorable inference, the complaint sufficiently states causes of action against the owners alleging a violation of Labor Law § 200 and common-law negligence (see Bayron Chay Mo v Ultra Dimension Place, LLC, 236 AD3d 721, 723; cf. Wong v City of New York, 65 AD3d 1000, 1001), as well as violations of Labor Law §§ 240(1) and 241(6) (see Bayron Chay Mo v Ultra Dimension Place, LLC, 236 AD3d at 722-723). Moreover, the evidentiary material submitted by the owners in support of their motion failed to establish that the plaintiff did not have a cause of action against them or that a material fact claimed by the plaintiff is not a fact at all and that no significant dispute exists regarding it (see Curran v Village of Amityville, 241 AD3d 868, 869-870; Atlasman v Korol, 238 AD3d at 829). Furthermore, the evidence submitted by the owners either did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) or failed to utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law (see Eisner v Cusumano Constr., Inc., 132 AD3d 940, 942). Accordingly, the Supreme Court properly denied that branch of the owners' motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

Contrary to the owners' contention, their evidentiary submissions, including their affidavits, did not conclusively establish that Co Adaptive has no cross-claims against them (see Yu Chen v Kupoint [USA] Corp., 160 AD3d 787, 789), nor did the documentary evidence submitted by the owners establish a defense to the cross-claims as a matter of law (see Fitzpatrick v City of New York, 232 AD3d 670, 673). Accordingly, the Supreme Court also properly denied that branch of the owners' motion which was pursuant to CPLR 3211(a) to dismiss Co Adaptive's cross-claims.

CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court