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Phillips v. Taco Bell Corp.

Supreme Court of New York, Second Department

July 26, 2017

Rachina Phillips, respondent,
v.
Taco Bell Corp., et al., appellants, et al., defendant. Index No. 6900/15

          McAndrew, Conboy & Prisco, LLP, Melville, NY (Mary C. Azzaretto of counsel), for appellants.

          Elana Sharara, Great Neck, NY, for respondent.

          MARK C. DILLON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JEFFREY A. COHEN, JJ.

          DECISION & ORDER

         In an 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.

         ORDERED that the order is affirmed, with costs.

         The 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 Taco Bell 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.

         Prior to answering the complaint, the defendants moved pursuant to CPLR 3211(a)(1) and (7), in effect, to dismiss the complaint insofar as asserted against them, alleging that the plaintiff's 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.

         "A 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][1]; 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).

         Here, 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 plaintiff's 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.

         On a 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 stated a ...


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