Hock & Hamroff, LLP, New York, NY (Bruce A. Schoenberg of
counsel), for appellant.
Kaplan, Massamillo & Andrews, LLC, New York, NY (Jennifer
Huang and Eugene Massamillo of counsel), for respondent.
M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE,
BETSY BARROS, JJ.
DECISION & ORDER
action to recover damages for injury to property, the
plaintiff appeals from an order of the Supreme Court,
Westchester County (Smith, J.), dated November 21, 2014,
which granted the defendant's motion pursuant to CPLR
3211(a) to dismiss the complaint, and denied its cross motion
for leave to amend the complaint.
that the order is affirmed, with costs.
plaintiff, a commercial airline, operates flights out of
Westchester County Airport (hereinafter the Airport). The
Airport is operated by the County of Westchester. The
defendant contracted with the County to provide ground
handling services at the Airport. Allegedly, on two separate
occasions, the plaintiff's aircraft were damaged at the
Airport while being towed by the defendant's employees.
Thereafter, the plaintiff commenced this action against the
defendant to recover damages for injury to property, alleging
negligence and gross negligence. The defendant moved pursuant
to CPLR 3211(a) to dismiss the complaint. The plaintiff
opposed the defendant's motion and cross-moved for leave
to amend the complaint. The Supreme Court granted the
defendant's motion and denied the plaintiff's cross
motion. The plaintiff appeals, and we affirm.
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
A.D.3d 1180, 1180-1181; see Guggenheimer v Ginzburg,
43 N.Y.2d 268, 275). "In considering such a motion, the
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"
(Sokol v Leader, 74 A.D.3d at 1181 [internal
quotation marks omitted]; see Nonnon v City of New
York, 9 N.Y.3d 825, 827). "A court is, of course,
permitted to consider evidentiary material submitted by a
defendant in support of a motion to dismiss pursuant to CPLR
3211(a)(7). If the court considers evidentiary material, the
criterion then becomes whether the proponent of the pleading
has a cause of action, not whether [she or] he has stated
one" (Sokol v Leader, 74 A.D.3d at 1181-1182
[citations and internal quotation marks omitted]).
Supreme Court properly directed the dismissal of the first
cause of action, which alleged negligence. "Where the
language of an exculpatory agreement expresses in unequivocal
terms' the intention of the parties to relieve a
defendant of liability for its own negligence, the agreement
will be enforced" (Princetel, LLC v Buckley, 95
A.D.3d 855, 855-856, quoting Lago v Krollage, 78
N.Y.2d 95, 100). In support of its motion, the defendant
submitted the "Airport Terminal Use Agreement"
entered into between the County and the plaintiff. Provisions
in the Airport Terminal Use Agreement express in unequivocal
terms the intention of the parties to relieve the County and
its agents, in this case, the defendant, from liability
resulting from negligence in the performance of ground
handling services at the Airport. Thus, this evidence showed
that the plaintiff had no cause of action to recover damages
Supreme Court also properly directed the dismissal of the
second cause of action, which alleged gross negligence.
" To constitute gross negligence, a party's conduct
must smack of intentional wrongdoing or evince a reckless
indifference to the rights of others'" (J.
Petrocelli Contr., Inc. v Morganti Group, Inc., 137
A.D.3d 1082, 1083, quoting Ryan v IM Kapco, Inc., 88
A.D.3d 682, 683). Here, the plaintiff failed to allege any
facts constituting willful misconduct or gross negligence on
the part of the defendant.
of the foregoing, the Supreme Court properly granted the
defendant's motion to dismiss the complaint, even though,
as the plaintiff correctly contends, the request for
dismissal pursuant to CPLR 3211(a)(1) was untimely
(see CPLR 3211[e]; Portilla v Law Offs. of Arcia
& Flanagan, 125 A.D.3d 956, 956-957; Diaz v
DiGiulio, 29 A.D.3d 623).
the Supreme Court providently exercised its discretion in
denying the plaintiff's cross motion for leave to amend
the complaint. "Although leave to amend should be freely
given in the absence of prejudice or surprise to the opposing
party (see CPLR 3025[b]), the motion should be
denied where the proposed amendment is palpably insufficient
or patently devoid of merit" (Strunk v
Paterson, 145 A.D.3d 700, 701; see Lucido v
Mancuso, 49 A.D.3d 220, 229). "Whether to grant
such leave is within the motion court's discretion, the
exercise of which will not be lightly disturbed"
(Pergament v Roach, 41 A.D.3d 569, 572). In this
case, the proposed amendments were patently devoid of merit.
the Supreme Court properly granted the defendant's motion
pursuant to CPLR 3211(a) to dismiss the complaint, and
properly denied the ...