The plaintiff commenced a personal injury action for injuries allegedly sustained by him in connection with a construction accident that occurred in Nassau County, New York.  In Hartnagel v FTW Contracting, the plaintiff alleged that the accident occurred while he was performing work at 50 North Road in Great Neck, NY.

The defendant contractor moved to dismiss the complaint on the basis that it had never performed any work at the specified location.  To this end, the defendant CEO  submitted a certification with the contract that confirmed work was performed at 48 North Road. Whereupon, the plaintiff cross-moved for leave to amend the complaint to change the alleged location of the accident from 50 North Road to 48 North Road. The trial court granted the plaintiff’s cross motion and denied defendant’s.

On appeal, the Second Department held that the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the complaint, as his proposed amendments were neither palpably insufficient nor patently devoid of merit, and did not prejudice or surprise any defendant. Since the amended complaint alleged that the accident location was actually 48 North Road, where Metropolitan admittedly performed work as the general contractor, the motion to dismiss the complaint was properly denied.

The Second Department also denied the defendants’ motion to dismiss the claim against its individually named CEO.  In order to win a CPLR 3211 motion based upon documentary evidence, a movant must submit evidence that utterly refutes plaintiff’s factual allegations and conclusively establishes a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity and, as such, affidavits and letters are not considered documentary evidence.  The court added that “[A]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action.”

Because Corporate officers “may be held personally liable for torts committed in the performance of their corporate duties” (Lido Beach Towers v. Denis A. Miller Ins. Agency, Inc., 128 A.D.3d 1025 at 1026), and because the CEO’s affidavit in support of the motion did not conclusively establish that [the plaintiff] has no cause of action.  The court may only consider evidence in support of a 3122 motion to determine whether the plaintiff “has a cause of action, not whether he has stated one”.

The court’s review of evidence is stricter under CPLR 3211.  Documentary evidence must conclusively refute the facts alleged in the complaint or the case will survive attack at this stage. An affidavit of someone with personal knowledge will almost never warrant dismissal under this statute.  Defense counsel should be sure to balance whether the best result can be achieved later, upon a motion for summary judgment, rather than early on given the sufficiency of the documentary evidence.  Often, the sworn depositions will support such a motion later.

Another tactic that might have been employed is negotiation:  A dismissal of the CEO in exchange for a consent amendment of the complaint would have saved the cost of two motions and an appeal and would have allowed the matter to march toward to a conclusion.  There are no facts in the decision that establish that negotiation was not attempted, but the case can be an example of the benefits or advantages of skilled negotiation driven by strategy decisions.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .