Filed Papers: Claim, filed September 6, 2002.
On the morning of April 26, 2002, Claimant's decedent was driving his motor
vehicle on Tissal Road in the Town of Saugerties, Ulster County when, as he
attempted to cross the CSX Transportation railroad tracks, his motor vehicle
was struck by a CSX train resulting in his injury and unfortunate death.
Claimant alleges the Defendant was negligent in the "maintenance, operation,
conduct and control of the railroad crossing on Tissal Road" (Claim, ¶
Defendant has timely moved pre-answer to dismiss the instant Claim based upon
certain documentary evidence (see, Edelman Affidavit, Exhibits 1-4),
which Defendant asserts establishes the accident site as a "private crossing"
for which the Defendant bears no responsibility. Claimant has failed to oppose
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a
liberal construction (see, CPLR 3026). The Court accepts the facts as
alleged in the Claim as true, accords the Claimant the benefit of every possible
favorable inference, and determines only whether the facts as alleged fit
within any cognizable legal theory (Stukuls v State of New York, 42 NY2d
272, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR
3211 (a) (1), a dismissal is warranted only if the documentary evidence
submitted conclusively establishes a defense to the asserted claim as a matter
of law (see, e.g., Leon v Martinez, 84 NY2d 83, 88 [documentary evidence
must utterly refute factual allegations]; see also Hopkinson v Redwing
Constr. Co., 2003 NY App Div LEXIS 265 [3rd Dept, January 16, 2003]).
The term "documentary evidence" as referred to in CPLR 3211 (a) (1) typically
means judicial records such as judgments and orders or out-of-court documents
such as contracts, deeds, wills, and/or mortgages (Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 20) and
includes "[a] paper whose content is essentially undeniable and which, assuming
the verity of its contents and the validity of its execution, will itself
support the ground on which the motion is based" (Id. at 21; see also 7
Weinstein-Korn-Miller, NY Civil Practice, ¶3211.06). This is to be
contrasted with the objections founded on documentary evidence listed in CPLR
3211(a)(5) which are of a nature that preclude maintaining an action (Bouquet
Brands Div. of J & D Food Sales, Inc. v Citibank, 97 AD2d 936).
Defendant has offered as its documentary evidence a November, 1918 Order of the
Public Service Commission (Exhibit 1) which closed and discontinued, inter
alia, the Tissal Road crossing and a map of the "intercity railroad
passenger service" (Exhibit 4) within New York State. In addition, Defendant
has submitted what appear to be printouts of records maintained by the New York
State Department of Transportation(Exhibit 2) and the United States Department
of Transportation (Exhibit 3) both of which provide detailed information
regarding the at-issue Tissal Road crossing. A review of the applicable case
law leads this Court to conclude that only the Order of the Public Service
Commission and the Map (Exhibits 1 and 4, respectively) are "documents" within
the meaning of CPLR 3211(a)(1) while the Departments of Transportation
"inventory" documents (Exhibits 2 and 3, respectively) which represent
information compiled into a summary form are not "essentially undeniable"
(cf. Kasiem v State of New York, Ct Cl [Lebous,J.] UID
#2001-019-561, Claim No. 101387, August 28, 2001).
Nonetheless, the documentary evidence properly before the Court establishes
the Tissal Road crossing as a private crossing not located within an "intercity
rail passenger service corridor" (see, Railroad Law §97[b]) and
is therefore beyond the control of the Department of Transportation (see,
Railroad Law § 97). As such, Defendant has established its defense by
documentary evidence that it had no control over the situs of this accident and
is entitled to judgment dismissing the Claim. Claimant's remedy may lie
elsewhere (see, Russell v Fusco, 267 AD2d 738).
Based upon the foregoing, Defendant's motion is granted and Claim No. 106588
shall be and hereby is dismissed.