Defendant moves this Court for an order dismissing the claim pursuant to CPLR
3211(a)(7), for failure to state a cause of action. Specifically, defendant
argues that claimant slipped and fell on a sidewalk owned by a private resident,
not the State of New York. Claimant opposes this relief, arguing that he has put
forth a legally cognizable claim.
In February 2006, claimant filed this action alleging that on February 14,
2004, at approximately 9:30 p.m., he slipped and fell on an icy sidewalk located
in front of 7856 Main Street, Hunter, New York. He further alleges, inter
alia, that the property is owned by defendant. In considering the
sufficiency of a pleading subject to a motion to dismiss for failure to state a
cause of action under CPLR 3211(a)(7), the task is whether “accepting as
true the factual averments of the complaint, [claimant] can succeed upon any
reasonable view of the facts stated” (People v New York City Tr.
Auth., 59 NY2d 343, 348). Claimant is accorded "the benefit of all favorable
inferences which may be drawn from [his] pleading" (Campaign for Fiscal
Equity, Inc. v State of New York, 86 NY2d 307, 318 ). Further, "in
the absence of proof that an alleged material fact is untrue or beyond
significant dispute," a court may not dismiss the complaint (Wall St. Assocs.
v Brodsky, 257 AD2d 526, 526-27 [1st Dept 1999]).
Based on this standard, claimant alleges that he slipped and fell on property
owned by defendant and that his fall was caused by defendant's failure to
properly maintain its premises. These allegations state a cause of action for
negligence (see e.g. Soich v Farone, 307 AD2d 658, 659 [3d Dept
2003]). At this juncture, it is not the Court's function to determine the
credibility of these allegations or claimant's ability to "ultimately establish
the truth of their allegations before the trier of fact" (Campaign for Fiscal
Equity, Inc. v State of New York, supra). In support of its motion,
defendant submits an attorney affirmation and an affidavit of defendant's
resident engineer in the county where the accident occurred. These submissions
state, upon information and belief, that the property adjacent to the sidewalk
is owned by Sharon Ann McGuire and Terilee McGuire, not the State of New York.
These submissions have no evidentiary value, as they are not based on personal
knowledge (see Beckmann v 71 Speeder Road, LLC, 28 AD3d 1053, [3d
Dept 2006]). Thus, the submissions do not establish that the material facts of
the claim are untrue (Wall St. Assocs. v Brodsky, supra).
Based on the submissions, the Court need not reach defendant's argument
concerning Highway Law § 46. That statute pertains to the maintenance of
sidewalks by a village after a highway renovation or other similar project
undertaken by the State not a claimant alleging that defendant is the landowner
where the incident occurred.
Accordingly, defendant's motion M-71507 is denied.
1. Notice of Motion filed March 27, 2006;
2. Affirmation of Kathleen M. Arnold dated March 27, 2006;
3. Affidavit of Robert L. Winans, Jr. sworn to March 21, 2006;
4. Affirmation in Opposition filed May 1, 2006; Exhibits A-G annexed.