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Procedure for Determining a Motion to Dismiss Pursuant to CPLR 3211 (a)(7) Where the Defendant Submits Evidence Explained/Elements of Gross Negligence Explained

The Second Department, in finding the complaint adequately pled gross negligence (re: packing and transporting an art collection), explained the analytical criteria for dealing with a motion to dismiss pursuant to CPLR 3211 (a)(7) where evidence is submitted by the defendant:

“On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences” … . The court is limited to “an examination of the pleadings to determine whether they state a cause of action,” and the “plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” … . “The test of the sufficiency of a pleading is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'” … .

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” …, and, if it does so, “the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'” … . “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” … .

Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” … . “To constitute gross negligence, a party’s conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others” … . “Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence” … . Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact … . Dolphin Holdings Ltd v Gander & White Shipping Inc, 2014 NY Slip Op 08316, 2nd Dept 11-26-14

 

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