Korsinsky v. Rose

120 A.D.3d 1307

993 N.Y.S.2d 92

2014 N.Y. Slip Op. 06179

Gersh KORSINSKY, appellant

v.Gary H. ROSE, etc., respondent, et al., defendants.

2013-01434

Supreme Court, Appellate Division, Second Department, New York.

Sept. 17, 2014.

Korsinsky & Klein, LLP, Brooklyn, N.Y. (Michael Korsinsky and Samuel Diamanstein of counsel), for appellant.

Lambert & Shackman, PLLC, New York, N.Y. (Thomas C. Lambert and Steven Shackman of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for, inter alia, conversion, trespass, abuse of process, and negligence, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 15, 2012, as granted the motion of the defendant Gary H. Rose pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as 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 Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Nerey v. Greenpoint Mtge. Funding, Inc., 116 A.D.3d 1015, 985 N.Y.S.2d 252 ; Goldberg v. Rosenberg, 116 A.D.3d 919, 983 N.Y.S.2d 833 ). Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ... dismissal should not eventuate” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see Xia–Ping Wang v. Diamond Hill Realty, LLC, 116 A.D.3d 767, 984 N.Y.S.2d 76 ; Paino v. Kaieyes Realty, LLC, 115 A.D.3d 656, 981 N.Y.S.2d 770 ; Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 A.D.3d 574, 971 N.Y.S.2d 48 ). Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Deutsche Bank Natl. Trust Co. v. Sinclair, 68 A.D.3d 914, 891 N.Y.S.2d 445 ; Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 A.D.3d 530, 846 N.Y.S.2d 368 ; McGuire v. Sterling Doubleday Enters., L.P., 19 A.D.3d 660, 799 N.Y.S.2d 65 ).

Here, the plaintiff alleged, inter alia, that Rose, a New York City marshal, entered his premises and took possession of a gas meter, and that he did so without the benefit of a properly obtained court order, without notice, and without proper procedure. Rose, in support of his motion pursuant to 3211(a)(7) to dismiss the amended complaint insofar as asserted against him, submitted, inter alia, a copy of an order of seizure issued in an action entitled Brooklyn Union Gas Co. v. Korsinsky, commenced against the plaintiff in the New York City Civil Court, Kings County, under Index No. 415236/10, pursuant to which the Civil Court directed a City marshal to remove the gas meter at issue.

New York City marshals are government officers, neutral and free of any conflict of interest concerning the removal of collateral (see Cla–Mil E. Holding Corp. v. Medallion Funding Corp., 6 N.Y.3d 375, 378–379, 813 N.Y.S.2d 1, 846 N.E.2d 431 ; see also New York City Civil Court Act §§ 1601, 1601–a ). They do not owe allegiance to, or take orders from, the creditors whose collateral they recover; rather, they act under the direction of a court (see Cla–Mil E. Holding Corp. v. Medallion Funding Corp., 6 N.Y.3d at 378–379, 813 N.Y.S.2d 1, 846 N.E.2d 431 ). In executing a facially valid order of seizure, a City marshal may rely on the presumption of regularity that attaches to such an order, a presumption that may be overcome by a showing that he or she knowingly or negligently executed an invalid order of seizure or similar warrant (see Rodriguez v. 1414–1422 Ogden Ave. Realty Corp., 304 A.D.2d 400, 758 N.Y.S.2d 43 ; Mayes v. UVI Holdings, 280 A.D.2d 153, 723 N.Y.S.2d 151 ; Iovinella v. Sheriff of Schenectady County, 67 A.D.2d 1037, 413 N.Y.S.2d 497 ). Moreover, a City marshal may be held liable for damages negligently caused in the course of executing a valid order of seizure (see Cla–Mil E. Holding Corp. v. Medallion Funding Corp., 6 N.Y.3d 375, 813 N.Y.S.2d 1, 846 N.E.2d 431 ).

“To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty and damages” (Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576, 934 N.Y.S.2d 43, 958 N.E.2d 77 ). Accepting the facts as alleged in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the evidence submitted by Rose established that Rose did not knowingly or negligently execute an invalid order of seizure, and there is no significant dispute in this regard. Accordingly, the plaintiff does not have a cause of action sounding in negligence against Rose in connection with the execution of the order...