Olivier v Nyack Joint Fire Dist.

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Olivier v Nyack Joint Fire Dist. 2018 NY Slip Op 33906(U) November 17, 2018 Supreme Court, Rockland County Docket Number: 031241/2018 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 11/20/2018 05:51 PM NYSCEF DOC. NO. 56 INDEX NO. 031241/2018 RECEIVED NYSCEF: 11/20/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------------x MAR IE OLIVIER, Plaintit11s), DECISION & ORDER lndex No. 03124112018 -againstTHE NYACK JOINT FIRE DISTRICT, THE VILLAGE OF NY ACK, THE TOWN OF CLARKSTOWN, THE TOWN OF ORANGETOWN, THE COUNTY OF ROCKLAND, RICHARD J. SCULLY, JOSEPH MOGER and SKYE S. LEITH, Motion # I - MG DC-N Adj : 12/2 1118 Defendant(s). ------------------------------------------------------------------------x Hon. Thomas E. Wa lsh II , J.S.C. The fo llowing papers numbered I read on this motion by Defendant THE TOWN OF ORANGETOWN fo r an Order pursuant to Civil Practice Law and Rules§ 321 l (a)(7) dismissing the Verified Complaint as against Defendant THE TOWN OF ORANGETOWN on the grounds that said Complaint fa ils to state a cause of acti on: NUMBERED PAPERS Notice of Motion (Moti on# I)/ Affirmation of Denise A. Sullivan, Esq. in Support of Motion to Dismiss Verified Complaint/Exhibits (A- G) The lawsui t arises out of a motor vehi cle accident which occurred on August 26, 2017 whi le Plaintiff was a passenger in a parked automobil e that was struck by a motor vehicle that was leased, owned, controlled or managed by co-Defendant NYACK JOf T FORE DISTRICT and operated by co-Defendant RICHARD J. SCULLY. Defendant THE TOWN OF ORANGETOWN (hereinafter ORANGETOWN) contends that a joint fire di strict is an independent political entity serving the property and property owners included with the fore district. According to Defendant ORANGETOWN the affairs of the joint fir district are under the management of the board of fire commissioners who are appointed jointly by the town and vi llage boards or elected by the voters pursuant to Article 11 of Town Law. Further, Defendant 1 of 4 [*FILED: 2] ROCKLAND COUNTY CLERK 11/20/2018 05:51 PM NYSCEF DOC. NO. 56 INDEX NO. 031241/2018 RECEIVED NYSCEF: 11/20/2018 submits that pursuant to Town Law § 176( 18), ( 19), (28) and (3) a fire district is "empowered" to insure itself against liability and can use it 's independent tax ing power to pay claims made against the district. Additionally, Defendant submits that the liability of a fire district for negli gent acts of a volunteer foreman are set forth in General Municipal law § 205-b. Therefore, Defendant ORANGETOWN argues that they are not liable for negli gence on the part of members of the Fire D istrict who were engaged in firefi ghting or other aut horized activities of the fire d istrict. Defendant ORANGETOWN asserts that they have no legal interest in any portion of the instant action. Additionally, Defendant ORANGETOWN asserts that the Verified Complaint filed in the instant action fails to contain a theory fo liability or reference any predicated liability as to Defendant ORANG ETOWN. Specifically, Defendant states that the o nly reference to them in the Veri fied Complaint in paragraphs 14 through 16 in which Plaintiff asserts that s he filed a Notice of Claim against Defendant ORANGETOWN and that Defendant ORANGETOWN conducted a GML § 50-h hearing on February 8, 2018. Defendant ORANG ETOWN contends that they did not conduct a GML § 50-h hearing of Plaintiff on February 8, 20 18 or at any time. Further, De fendant asserts that there is no allegation that co-Defendant SCULLY was employed by Defendant ORANGETOWN or that he was driving a vehicle that was owned or leased by Defendan t O RANGETOWN. Despite service of the instant motion on the co-defendants and the Plai ntiff the Court has not received any opposition. In considering a motion to dismiss fo r failure to state a cause of action pursuant to Civil Practice law and Rules § 321 1(a)(7) the pleadings must be liberally construed and the sole cri terion is whether from within the complaint's four comers factual all egations are discerned which taken together manifest any cause of action cognizable at law. The fac ts pleaded are to be presumed to be true and are to be accorded every favorable inference [Gershon v Goldberg. 30 AD 3d 372 (2d Dept 2006); Fitzgerald v. Federal Signal Corp. , 63 AD3d 994 (2d Dept 2009)]. When a party moves to dis miss a complaint under this sub-section the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action, and, in cons idering such a motion the court must determine o nly whether the facts as alleged fit 2 2 of 4 [*FILED: 3] ROCKLAND COUNTY CLERK 11/20/2018 05:51 PM NYSCEF DOC. NO. 56 INDEX NO. 031241/2018 RECEIVED NYSCEF: 11/20/2018 within any cogni zable legal theory. Whether a plainti ff can ultimately establish its allegati ons is no t part of the calculus [Sokol v Leader, 74 AD3d 1180 (2nd Dept 20 IO]. T he Court also recogni zes plaintiff's right to seek redress, and not have the courthouse doors closed at the very incepti on of the action, where the pleadings need meet onl y a minimal standard necessary to resist di smissal of a complaint [Campaign {or Fiscal Eq uity v State o[New York, 86 N.Y.2d 307, 1995]. The Cou r1 has reviewed the complai nt and, based upon the fo rego ing, the motion should be granted as defendants have demonstrated their entitlement to the requested relief. In arriving at this decision the Court has reviewed, eva luated and considered all of the issues framed by these motion papers and the fa ilure of the Co urt to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority. According ly, it is hereby ORDERED that the Defendant THE TOWN OF ORANG ETOWN ' s motion (Motion # 1) is granted in its entirety; and it is further ORDERED that the Verified Complaint is dismi ssed as to Defendant THE TOWN OF ORA GETOWN; and it is fu rt her ORDERED that the remaining parties are to appear for a status conference on FRIDAY DECEMBER 21, 2018 at 9:30 a.m. Dated : New City, NfPYork November J{--• 2018 Hon. Thomas E. Walsh II, J.S.C. To: MARK J. LINDER, ESQ. I lARMO , LINDER & ROGOWSKY, ESQ. Attorney for Plaintiff (via e-file) 3 3 of 4 [*FILED: 4] ROCKLAND COUNTY CLERK 11/20/2018 05:51 PM NYSCEF DOC. NO. 56 INDEX NO. 031241/2018 RECEIVED NYSCEF: 11/20/2018 DONNA M. WH ITE, ESQ. MORRIS DUFFEY ALONSO & FALEY Attorney for Defendants - THE NY ACK JOINT FIRE DISTRICT and RI CHARD J. SCULLY (via e-file) JOSEPH R. APPLEBAUM, ESQ. HURWITZ & FINE, P.C. Attorney for Defendant - JOSEPH MOGER KA TE VANDENDOLDER, ESQ. LAW OFFICES OF JOHN TROP Attorney for Defendant SKYES. LElTH (via e-file) DENTS A. SULLIVAN, ESQ. DEPUTY TOWN ATTORNEY ROBERT V. MAGRJNO, ESQ. TOWN ATTORNEY, TOWN OF ORANGETOWN (vi a e-file) 4 4 of 4

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