Wade Clark Mulcahy LLP

When a plaintiff seeks to recover damages for personal injuries from the defendants and thereafter, moves for leave to amend the complaint, the Court must not only consider the motion for leave to amend but must also consider any defendant’s motion for dismissal.

For example, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/Langley-v.-Melville-Fire-Dist..pdf">Langley v. Melville Fire Dist.</a>,</em> 2023 NY Slip Op 00656 (2d Dep’t February 8, 2023), the plaintiff was standing in a roadway in Melville when he was struck by a tree limb that fell from a tree adjacent to the roadway.

Plaintiff subsequently commenced a lawsuit against the defendants, Melville Fire District and Melville Fire Department to recover damages for personal injuries. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. Subsequently, the plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In opposition, the defendants’ argued the amended complaint should be dismissed because the evidentiary submissions demonstrated there was no cause of action for plaintiff to recover.

The lower court held that the defendants’ motion should be denied, but the second department recently reversed this decision. The Second Department reasoned “[w]here a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed.”

Accordingly, the Second Department held that the amended complaint was predicated on a special relationship existing between the plaintiff and Fire Department and the evidentiary proof established there was no special relationship wherein defendants had no duty to maintain or prune the tree because it was not on their land. As such, the Supreme Court should have granted the defendants’ motion to dismiss.

Thanks to Lauren Howard for her contribution to this article.  Should you have any question, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.