Argued-May 23, 2017
McAndrew, Conboy & Prisco, LLP, Melville, NY (Mary C.
Azzaretto of counsel), for appellants.
Sharara, Great Neck, NY, for respondent.
C. DILLON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JEFFREY A.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants appeal from an order of the Supreme Court, Nassau
County (Brown, J.), entered April 18, 2016, which denied
their motion pursuant to CPLR 3211(a)(1) and (7), in effect,
to dismiss the complaint insofar as asserted against them.
that the order is affirmed, with costs.
plaintiff allegedly was preparing hot foods within the scope
of her employment at a Taco Bell restaurant in Hempstead
(hereinafter the premises) when she sustained personal
injuries after boiling water spilled on her right foot. It is
undisputed that the plaintiff was employed by Taco Bell of
America, LLC (hereinafter the LLC). The plaintiff commenced
this action against TacoBell Corp. (hereinafter Taco Bell)
and Yum! Brands, Inc. (hereinafter Yum Brands; hereinafter
together the defendants), and "John Doe, ''
alleging that the defendants owned, licensed, operated,
managed, controlled, supervised, maintained, and inspected
the premises and that her injuries were caused solely by the
negligence of the defendants.
answering the complaint, the defendants moved pursuant to
CPLR3211(a)(1) and (7), in effect, to dismiss the complaint
insofar as asserted against them, alleging that the
plaintiffs employer, the LLC, was a subsidiary company of Yum
Brands and a sister company of Taco Bell. The defendants
further alleged that the premises was owned, operated, and
controlled exclusively by the LLC. Accordingly, the
defendants argued that the action could not be maintained
against them because they did not own, operate, or maintain
the premises, and even if they did own, operate, or maintain
the premises, they were the "alter egos" of the LLC
and, thus, any claim against them was barred, as workers'
compensation was the exclusive remedy. The Supreme Court
denied the motion. The defendants appeal.
motion pursuant to CPLR 3211(a)(1) to dismiss the complaint
on the ground that the action is barred by documentary
evidence 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" (Mawere v Landau, 130 A.D.3d 986, 987
[internal quotation marks omitted]; see Goshen v Mutual
Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). If the
evidence submitted in support of the motion is not
"documentary, " the motion must be denied (CPLR
3211[a]; see Prott v Lewin & Baglio, LLP, 150
A.D.3d 908). To constitute documentary evidence, the evidence
must be "unambiguous, authentic, and undeniable"
(Granada Condominium III Assn. v Palomino, 78 A.D.3d
996, 997), such as judicial records and documents reflecting
out-of-court transactions such as mortgages, deeds,
contracts, and any other papers, the contents of which are
essentially undeniable (see Prott v Lewin & Baglio,
LLP, 150 A.D.3d 908). Conversely, letters, emails, and,
as most relevant to this appeal, affidavits, do not meet the
requirements for documentary evidence (see id.; Attias v
Costiera, 120 A.D.3d 1281, 1283; Matter of
Walker, 117 A.D.3d 838, 839). An affidavit is not
documentary evidence because its contents can be controverted
by other evidence, such as another affidavit (see J.A.
Lee Electric, Inc. v City of New York, 119 A.D.3d 652).
the affidavits submitted in support of the defendants'
motion were not documentary evidence within the meaning of
CPLR 3211(a)(1). To the extent the other evidence submitted
was documentary, that evidence did not conclusively establish
that the defendants lacked ownership or control over the
premises or that the defendants were in fact the alter egos
of the plaintiff's employer. Thus, the defendants did not
conclusively establish a defense as a matter of law or
utterly refute the plaintiffs factual allegations (see
Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at
326), and that branch of their motion which sought dismissal
pursuant to CPLR 3211(a)(1) was properly denied.
motion pursuant to CPLR 3211(a)(7) to dismiss for failure to
state a cause of action, the court must afford the pleading a
liberal construction, accept all facts as alleged in the
pleading to be true, accord the plaintiff the benefit of
every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal
theory (see Leon v Martinez,84 N.Y.2d 83, 87;
Scialdone v Stepping Stones Assoc., L.P., 148 A.D.3d
953). Thus, "a motion to dismiss made pursuant to CPLR
3211 (a) (7) will fail if, taking all facts alleged as true
and according them every possible inference favorable to the
plaintiff, the complaint states in some recognizable form any
cause of action known to our law" (Shaya B. Pac.,
LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,
LLP,38 A.D.3d 34, 38). While 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)
(see Sokol v Leader,74 A.D.3d 1180, 1181),
"affidavits submitted by a defendant will almost never
warrant dismissal under CPLR 3211 unless they establish
conclusively that [the plaintiff] has no cause of
action'' (Bokhour v GTI Retail Holdings,
Inc.,94 A.D.3d 682, 683 [internal quotation marks
omitted]; see Sokol v Leader, 74 A.D.3d at 1182).
Here, the complaint ...