- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Merola v. Narrows Medical Building Associates, LLC
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03447
Background
Plaintiff Gary Merola commenced this action for personal injuries he sustained when he tripped and fell on a sidewalk abutting property owned by defendant Narrows Medical Building Associates, LLC. Defendant moved to dismiss under CPLR 3211(a), contending the plaintiff fell due to a defect in a curb and that the defendant had no duty to maintain the curb under Section 7-210 of the Administrative Code. Supreme Court, Kings County (Patria Frias-Colón, J.), denied the motion. Defendant appealed.
Holding
The Appellate Division, Second Department, affirmed the denial of the motion to dismiss, with costs. The Court noted an important procedural issue: the Supreme Court had erroneously converted the CPLR 3211(a) motion into one for summary judgment under CPLR 3212 without providing adequate notice under CPLR 3211(c). Because no adequate notice was given, the Court applied the more liberal CPLR 3211(a) standards rather than summary judgment standards.
Under those standards, the evidence submitted by the defendant failed to conclusively establish as a matter of law that the defect was located exclusively within the curb rather than on the sidewalk. The Court cited Buonviaggio v. Parkside Associates, L.P., 120 AD3d 460, 461-462, and Sangaray v. West River Associates, LLC, 26 NY3d 793, holding that where the location of the defect is disputed, the documentary evidence does not “utterly refute” the plaintiff’s allegations. On a CPLR 3211(a)(7) motion, the complaint must be afforded a liberal construction with all facts accepted as true.
Takeaways
This decision highlights two important principles. First, courts cannot convert CPLR 3211 motions to dismiss into summary judgment motions without providing adequate notice to the parties under CPLR 3211(c). When this procedural error occurs, the appellate court will review under the more forgiving dismissal standards rather than the summary judgment standard. Second, the distinction between a curb defect and a sidewalk defect can be dispositive in determining whether an abutting property owner has a duty to maintain the area under Section 7-210, and where that factual question is disputed, dismissal is inappropriate.
Why It Matters
Personal injury practitioners should pay close attention to the precise location of alleged defects in sidewalk fall cases, as the curb-versus-sidewalk distinction determines whether Section 7-210 imposes a duty on the abutting owner. Defendants seeking early dismissal must conclusively establish through documentary evidence that the defect was in the curb alone. If photographs, survey data, or other evidence leave any ambiguity about whether the defect extended onto the sidewalk, a motion to dismiss will fail. The procedural holding regarding CPLR 3211(c) conversion is equally important—defense counsel should request summary judgment treatment explicitly if they wish to have their evidence weighed under that standard.