N.Y. C.P.L.R. § 3211

Under CPLR 3211 (a) (1), documentary evidence does not warrant dismissal when it leaves a material issue unresolved.

Bordeleau v. State · filed 2010-06-24(a)(1)

Similarly, since the propriety of the appropriations challenged here depends upon whether their public benefits constitute sufficient consideration while the private benefits are merely incidental, defendants’ submission of documentary evidence showing their public purposes fails to resolve any material issue in their favor as a matter of law and dismissal is not warranted under CPLR 3211 (a) (1) (see Weston v Cornell Univ., 56 AD3d 1074, 1076 [2008]; Heslin v Metropolitan Life Ins. Co., 9 AD3d 581, 583 [2004]).

Under CPLR 3211(a)(1), evidence must be of undisputed authenticity to qualify as documentary evidence supporting dismissal.

Springer v. Almontaser · filed 2010-07-13(a)(1)

The newspaper articles, printouts of web pages, and transcripts of radio and television interviews which were submitted by the defendant in support of that branch of her motion which was pursuant to CPLR 3211 (a) (1) were not “of undisputed authenticity” and, thus, did not qualify as documentary evidence.

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when the opposing party has a colorable claim for relief.

Village of Delhi v. Town of Delhi · filed 2010-04-29(a)(1)

Specifically, while it is clear that respondents produced evidence supporting their claim that the Village should be held responsible for the WSB, petitioners, in turn, proffered a colorable claim for relief. Accordingly, we find no basis to conclude that Supreme Court erred in failing to grant respondents’ requested relief pursuant to CPLR 3211 (a) (1).

On a CPLR 3211 motion, allegations and additional evidence may establish a cognizable cause of action, while documentary evidence must conclusively establish a defense to warrant dismissal.

Blue Diamond Group Corp. v. Klin Construction Group, Inc. · filed 2010-05-18

The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 to dismiss the second cause of action to recover damages for violation of Judiciary Law § 487 insofar as asserted against the defendant Chunyu Jean Wang (hereinafter the appellant). The allegations in the complaint, together with the additional evidentiary material considered on the motion ... sufficed to set forth a cognizable cause of action ... and the defendants failed to submit documentary evidence conclusively establishing a defense to the cause of action as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Sullivan v State of New York, 34 AD3d 443, 445 [2006]).

Under CPLR 3211(a)(1), deeds may qualify as documentary evidence, but affidavits and deposition testimony do not.

Suchmacher v. Manana Grocery · filed 2010-05-18(a)(1)

Although documents such as deeds, which reflect out-of-court transactions and are essentially unassailable, qualify as “documentary evidence” within the intended scope of CFLR 3211 (a) (1), affidavits and deposition testimony do not (see Fontanetta v John Doe 1, 73 AD3d 78 [2010]).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Galvan v. 9519 Third Avenue Restaurant Corp. · filed 2010-06-01(a)(1)

The documentary evidence submitted by GNY, namely, an insurance policy (hereinafter the Policy) between GNY and the defendant/ second third-party defendant, 9519 Third Avenue Restaurant Corp. (hereinafter 9519), and a lease between the third-party plaintiffs and 9519, failed to resolve all factual issues as a matter of law and to conclusively dispose of the third-party plaintiffs’ claims for a defense and indemnification from GNY in the main action.

Under CPLR 3211(a)(1), documentary evidence warrants dismissal only if it conclusively establishes a defense to the claims.

Minsky v. Haber · filed 2010-06-01(a)(1)

The Haber defendants’ submission of documentary evidence did not conclusively establish a defense to the claims asserted by the plaintiff (see CPLR 3211 [a] [1]; see generally Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]), but merely revealed the existence of factual questions with regard to the propriety of the Haber defendants’ conduct.

Under CPLR 3211(a)(1), documentary evidence supports dismissal when it utterly refutes the complaint’s factual allegations or conclusively establishes a defense as a matter of law.

Board of Managers of Marke Gardens Condominium v. 240/242 Franklin Avenue, LLC · filed 2010-03-23(a)(1)

In addition, contrary to the defendant’s contention, the documentary evidence does not utterly refute the plaintiff’s factual allegations, nor conclusively establish a defense as a matter of law (see Birnbaum v Yonkers Contr. Co., 272 AD2d 355 [2000]; Zanani v Savad, 228 AD2d 584 [1996]; see also State of New York v Sonifer Realty Corp., 212 AD2d 366, 367 [1995]; see generally Rubinstein v Salomon, 46 AD3d 536, 539 [2007]).

CPLR 3211(a)(1) permits dismissal when a written agreement conclusively establishes a defense to the claims.

Travelers Property Casualty Co. v. Global Protection Systems, Inc. · filed 2010-03-30(a)(1)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action to the extent that it sounded in gross negligence and the second and third causes of action insofar as asserted against the appellant are granted.

Section 3211(a)(1) requires qualifying documentary evidence; printed materials that are not essentially undeniable cannot support dismissal under it.

Fontanetta v. John Doe 1 · filed 2010-03-30(a)(1)

Since the defendants’ printed materials were not “documentary evidence” and they made this motion exclusively under CPLR 3211 (a) (1), their submissions were insufficient as a matter of law to grant their motion.

Section 3211(a)(1) does not permit dismissal based on documentary evidence when ambiguous contract language leaves factual issues unresolved.

Cerand v. Burstein · filed 2010-04-08(a)(1)

Therefore, finding that the language of the contract provision is ambiguous and susceptible to alternative interpretations, defendant’s documentary evidence does not resolve all factual issues so as to definitively dispose of plaintiffs claim (see CPLR 3211 [a] [1]).

A motion under CPLR 3211(a)(1) that depends on proof of damages requires conclusive documentary evidence of those damages.

Orbimed Advisors, LLC v. QVT Fund LP · filed 2010-04-20(a)(1)

In the present context, that would require conclusive documentary evidence of damages (CPLR 3211 [a] [1]), that QVT fails to submit.

Evidence that might support summary judgment if unchallenged may still be insufficient to dismiss a complaint under subsection (a)(1).

Dynamic Medical Imaging P.C. v. State Farm Fire & Casualty Co. · filed 2010-01-28(a)(1)

In this case, defendant’s offer of proof may well sustain a motion for summary judgment in its favor if left unchallenged by plaintiff; however, in its present context, as support for a CPLR 3211 (a) (1) motion that does not require plaintiff to lay bare its proof, it does not suffice.

A party seeking dismissal based on documentary evidence must submit evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Snyder v. Allstate Insurance · filed 2010-02-02(a)(1)

“A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim’ ” (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611, 613 [2008]; Cohen v Nassau Educators Fed. Credit Union, 37 AD3d 751, 752 [2007]).

Under CPLR 3211(a)(1), documentary evidence must conclusively dispose of a claim to support dismissal.

Yenrab, Inc. v. 794 Linden Realty, LLC · filed 2009-12-01(a)(1)

Contrary to the defendants’ contention, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the second cause of action to recover damages against Linden only for breach of contract. ... Here, the documentary evidence put forth, including the lease between the parties, did not conclusively dispose of the plaintiff’s breach of contract claims against Linden.

Under CPLR 3211(a)(1), documentary evidence must establish a basis for dismissal as a matter of law.

Keane v. Tomsky · filed 2002-01-22(a)(1)

Appellants’ motion to dismiss was properly denied since the documentary evidence upon which the motion is premised does not establish, as a matter of law, that defendants, plaintiffs attorneys in the underlying action, did not commit actionable malpractice in connection with serving the defendants in that action (see, Ladenburg Thalmann & Co. v Tim’s Amusements, 275 AD2d 24:3/246).

Under CPLR 3211(a)(1), a defendant seeking dismissal must show that documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Fortis Financial Services, LLC v. Fimat Futures USA, Inc. · filed 2002-01-31(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant has the burden of showing that the relied-upon documentary evidence “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Scadura v Robillard, 256 AD2d 567, 567).

A claim should not be dismissed on documentary evidence when the papers leave a material fact unresolved.

ME Corp. S.A. v. Cohen Bros. · filed 2002-03-07(a)(1)

The motion court erred in prematurely dismissing the second, third, fourth and fifth causes of action inasmuch as Deltom’s actual status at the time the complaint was filed could not be unequivocally determined on the papers before it.

Under CPLR 3211, documentary evidence that flatly contradicts material allegations can support dismissal even if the allegations are facially sufficient.

Montefiore v. Soja · filed 2002-03-19

Dismissal of the complaint for, inter alia, fraud as against defendant Soja was proper, since plaintiffs material allegations against Soja, even if facially sufficient, were flatly contradicted by the documentary evidence submitted by plaintiff as exhibits to the complaint (see, Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81, affd 94 NY2d 659).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes a valid defense to a claim.

Von Damm v. Lutheran Cemetery · filed 2001-11-26(a)(1)

The second cause of action was properly dismissed on the ground that, inter alia, there was a valid defense founded upon documentary evidence, as the defendant demonstrated that it supplied the requested information to the plaintiff.

Section 3211(a)(1) does not permit dismissal based on a proffered agreement when questions about its execution and delivery prevent it from establishing a defense as a matter of law.

Berenthal & Associates v. Mechanical Plastics Corp. · filed 2001-11-27(a)(1)

Accordingly, since the proffered retainer agreement cannot on the present state of the record be said to establish defendant’s defense as a matter of law, the motion to dismiss pursuant to CPLR 3211 (a) (1) was properly denied (see, Leon v Martinez, 84 NY2d 83, 87-88; Scott v Bell Atl. Corp., 282 AD2d 180, 182).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Trade Source, Inc. v. Westchester Wood Works, Inc. · filed 2002-01-14(a)(1)

“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim”

Under CPLR 3211(a)(1), documentary evidence must definitively dispose of a cause of action to warrant dismissal.

In re Loukoumi, Inc. Gus Avlonitis · filed 2001-07-23(a)(1)

The documentary evidence submitted by the respondents did not definitively dispose of these causes of action (see, CPLR 3211 [a] [1]; Juliano v McEntee, 150 AD2d 524).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively defeats the plaintiff’s claim.

Ozdemir v. Caithness Corp. · filed 2001-07-26(a)(1)

Accordingly, it is clear from the plain language of the agreement and other documentary proof in the record that the requirement that plaintiff find and first introduce an investor, in this case SCE, to defendant has not been met and defendant’s motion pursuant to CPLR 3211 (a) (1) should have been granted.

Under CPLR 3211(a)(1), documentary evidence supports dismissal when it resolves all factual issues as a matter of law and definitively disposes of the claim.

Adamkiewicz v. Lansing · filed 2001-11-01(a)(1)

“To succeed on a motion under CPLR 3211(a) (1), a defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the plaintiffs claim”

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes a defense to the claim.

M.D.T. 1984 Duplications Ltd. v. Mark IV Industries, Inc. · filed 2001-05-02(a)(1)

Defendant established its entitlement to dismissal of the first cause of action based both on a defense founded upon documentary evidence (see, CPLR 3211 [a] [1]) and on its performance under the settlement agreement (see, CPLR 3211 [a] [5]).

CPLR 3211(a)(1) permits dismissal when a gap in the document underlying the claim establishes a complete defense.

Staten Island Savings Bank v. Tri-State Power Wash, Inc. · filed 2001-06-25(a)(1)

The Supreme Court properly construed Cretella’s cross motion as one pursuant to CPLR 3211 (a) (1), as it was based upon the gap in the guaranty at issue, i.e., the lack of the name of the borrower or principal obligor. The lack of a borrower or principal obligor on the guaranty constitutes a complete defense to any liability on Cretella’s part. Therefore, the cross motion was properly granted.

Documentary evidence supports dismissal under § 3211(a)(1) only if it conclusively establishes a defense as a matter of law.

Cherry v. Resource America, Inc. · filed 2001-07-03(a)(1)

The facts as alleged in the complaint against Resource America fit within a cognizable legal theory and the documentary evidence submitted does not conclusively establish a defense to the asserted claims as a matter of law (see, LaBarte v Seneca Resources Corp., supra; see generally, Leon v Martinez, supra, at 87-88).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim.

Museum Trading Co. v. Bantry · filed 2001-03-19(a)(1)

To the extent that the motion is considered to have been made pursuant to CPLR 3211 (a) (1), “the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Scadura v Robillard, 256 AD2d 567; see, Leon v Martinez, 84 NY2d 83, 87-88; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460). Here, the documentary evidence submitted by the defendant did not resolve all factual issues as a matter of law.

On a CPLR 3211 motion to dismiss, a court accepts the complaint’s factual allegations as true unless documentary evidence flatly contradicts them.

Committee To Save Washington Square, Inc. v. Dormitory Authority · filed 2001-03-15

While it is well settled that a court must accept the facts alleged in a complaint as true when reviewing a motion to dismiss pursuant to CPLR 3211 (see, Cron v Hargro Fabrics, 91 NY2d 362, 366), it is equally well settled that a court need not accept as true factual allegations that, as here, are flatly contradicted by documentary evidence (see, Maas v Cornell Univ., 94 NY2d 87, 91).

Section 3211(a)(1) permits dismissal of an Article 78 petition based on documentary evidence considered with the petitioner’s response.

Lashway v. Kuhlmann · filed 2000-12-14(a)(1)

Upon review of the documentary evidence submitted by respondents (see, CPLR 3211 [a] [1]) and petitioner’s response thereto, we are persuaded that Supreme Court properly granted respondents’ motion to dismiss upon the proof submitted (compare, Matter of Cowart v Selsky, 254 AD2d 663, 664 [service of answer and return required where the inmate has raised an issue of substantial evidence]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Jaslow v. Pep Boys—Manny, Moe & Jack · filed 2001-01-29(a)(1)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the cause of action to recover for an alleged violation of General Business Law § 349. It is well settled that dismissal pursuant to CPLR 3211 may be granted where “ ‘documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law’ ” (Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when conflicting contract provisions leave the parties’ rights uncertain.

Gateway Detroit Associates, L. L. C. v. Witkoff Group, L. L. C. · filed 2001-02-15(a)(1)

In view of this conflict and the differing explanations as to how these sections were to be applied, it cannot be said that the documentary evidence submitted entitled either of the parties to judgment as a ... matter of law (see, CPLR 3211 [a] [1]; cf., Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172; General Phoenix Corp. v Cabot, 300 NY 87).

Documentary evidence supports dismissal under CPLR 3211(a)(1) when it establishes a complete defense as a matter of law.

Rao v. Verde · filed 1995-12-18(a)(1)

The Supreme Court properly determined that the documentary evidence consisting of the agreement to "negotiate in good faith to arrange a more formal agreement” for the sale of the plaintiff’s decedent’s orthopedic practice constituted a complete defense as a matter of law to the first cause of action alleging breach of contract and seeking compensatory damages (see, Leon v Martinez, 84 NY2d 83; Goodstein Constr. Corp. v City of New York, 80 NY2d 366; Martin Delicatessen v Schumacher, 52 NY2d 105, 109-110; Willmott v Giarraputo, 5 NY2d 250, 253; Lo Cascio v James V. Aquavella, M.D., P. C., 206 AD2d 96, 99; McGee & Gelman v Park View Equities, 187 AD2d 1012, 1013; see also, General Obligations Law § 5-701 [a] [10]).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when it fails to establish a complete defense to the complaint.

Federal Insurance v. Chase Manhattan Bank, N. A. · filed 1995-06-19(a)(1)

We reject the defendant’s contention that the documentary evidence it submitted constitutes a complete defense to every cause of action in the complaint.

CPLR 3211(a)(1) and (5) do not warrant dismissal on contractual limitations, waiver, or release grounds when the documentary evidence contradicts the movant’s position and factual questions remain.

Highland Mechanical Industries, Inc. v. Herbert Construction Co. · filed 1995-06-22(a)(1), (a)(5)

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered June 6,1994, to the extent that it denied the motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (5), unanimously affirmed, with costs. ... While defendant disputes this claim, the documentary evidence in the record, rather than supporting defendant’s motion to dismiss on the ground of contractual limitations, as well as waiver and release, is, at times, directly contradictory to it. At the very least, there are disputed questions of fact here that require resolution in further proceedings.

An ambiguous deed does not warrant dismissal under CPLR 3211(a)(1) when the parties’ intentions cannot be determined from the document alone.

Witiuk v. Mykytiw · filed 1995-06-22(a)(1)

Inasmuch as the deed is ambiguous, and the parties’ intentions cannot be ascertained from the four corners of the document, Supreme Court properly denied defendant’s motion to dismiss on the basis of documentary evidence (see, e.g., Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873, 874).

Section 3211(a)(1) limits review of a documentary-evidence defense to proof whose contents are essentially undeniable.

Rakowsky v. Excelsior 57th Corp. · filed 1995-08-25(a)(1)

However, on defendant’s alternative motion for dismissal on a defense founded on documentary evidence pursuant to CPLR 3211 (a) (1), this court reviews the proof proffered by the parties, though such review is limited to documentary evidence, i.e., proof whose contents are "essentially undeniable”.

Section 3211(a)(1) permits dismissal when documentary evidence establishes a defense to the claim.

Aglira v. Julien & Schlesinger, P. C. · filed 1995-09-21(a)(1)

Thus, dismissal of the third-party complaint to the extent it alleges a claim in legal malpractice and breach of contract against Martin, Clearwater & Bell should have been granted on the basis of a defense founded on documentary evidence.

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues and definitively disposes of the claim.

Capital Wireless Corp. v. Deloitte & Touche · filed 1995-06-08(a)(1)

While defendant’s evidence may not have been relevant on a motion made pursuant to CPLR 3211 (a) (7) (see, Pietrosanto v NYNEX Corp., supra), such evidence, consisting largely of correspondence, may be considered on a motion made pursuant to CPLR 3211 (a) (1) (see, American Indus. Contr. Co. v Travelers Indem. Co., 42 NY2d 1041). To be successful, such evidence must resolve all factual issues and definitively dispose of plaintiff’s claim (see, Fern v International Bus. Machs. Corp., 204 AD2d 907, 909). Our review of the documentary evidence, most particularly defendant’s engagement letters, reveals a failure to definitely dispose of plaintiff’s claim.

Section 3211(a)(1) permits dismissal based on documentary evidence when that evidence establishes a defense as a matter of law.

New York State Medical Care Facilities Finance Agency v. Bank of Tokyo Trust Co. · filed 1994-11-28(a)(1)

The documentary evidence submitted by BOTT (the MCFFA Bond Resolution) does not establish BOTT’s defense to this action as a matter of law, because the Contract does not, as BOTT contends, relieve defendant of liability for its own negligence. Consequently, that part of BOTT’s motion which seeks dismissal of the complaint pursuant to CPLR 3211 (a) (1) must be denied.

Evidence that a client objected to invoices does not, by itself, warrant dismissal of an account stated claim under CPLR 3211(a)(1).

Tracy v. Talkline Broadcasting Corp. · filed 1994-10-26(a)(1)

Although evidence of an objection to an account stated may be sufficient to withstand a motion for summary judgment by refuting the inference of an implied agreement, it is not sufficient to strike a cause of action (see, Sandvoss v Dunkelberger, 112 AD2d 278; Santora & McKay v Mazzella, 182 AD2d 572; Ronny-Gerard, Inc. v Zimmerman, 150 AD2d 438).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it conclusively disposes of the plaintiff’s claim.

Rosner v. Sam Dairy, Inc. · filed 1994-11-14(a)(1)

We find that the Supreme Court properly denied the appellant’s motion pursuant to CPLR 3211 (a) (1) because the documentary evidence that was submitted by the appellant does not conclusively dispose of the plaintiffs claim against him (see, Mest Mgt. Corp. v Double M Mgt. Co., 199 AD2d 479, 480; Sammarco Garden Ctr. v Sammarco, 173 AD2d 456).

Section 3211(a)(1) permits dismissal of a fraud claim when documentary evidence establishes a complete defense.

Murray Hill Investments, Inc. v. Adas Yereim, Inc. · filed 1994-06-06(a)(1)

We also find that the documents submitted by MHT established a complete defense to the fraud action founded upon documentary evidence (see, CPLR 3211 [a] [1]).

Section 3211(a)(1) does not warrant dismissal when a material factual question remains.

Zoneinshein v. Kohn · filed 1994-04-25(a)(1)

Since there remains a factual question as to whether the appellant gave reasonable notice that the insurance had not been obtained ... the court correctly denied the appellant’s motion pursuant to CPLR 3211 (a) (1).

Section 3211(a)(1) permits dismissal when documentary evidence establishes that the plaintiff suffered no legally cognizable loss.

Tuckman v. Wachtel · filed 1994-01-25(a)(1)

... defendants’ motion to dismiss the complaint based on documentary evidence demonstrating that plaintiff suffered no legally cognizable loss must be granted.

Under CPLR 3211(a)(1), invoices do not warrant dismissal when they fail to definitively negate the plaintiff’s claims.

Roger Laviale, Ltd. v. Inter-Maritime Forwarding Co. · filed 1994-02-17(a)(1)

The invoices relied on by defendants do not definitively support their contention ... that any price could be charged for the insurance that was procured for plaintiff, or definitively negate plaintiff’s concealment and breach of trust claims.

A court may treat a preanswer motion that cites no statutory ground as a CPLR 3211(a)(1) motion when the defense rests on documentary evidence.

Lisa W. v. Thomas M. · filed 1993-11-08(a)(1)

Although respondent does not cite any specific statutory provision under which he requests a dismissal of the action, the court in its discretion will consider the motion to be a preanswer motion to dismiss pursuant to CPLR 3211 (a) (1) on the ground that a defense is based upon documentary evidence, i.e., the adoption consent executed by the father.

A documentary-evidence defense does not warrant dismissal when the plaintiff alleges sufficient facts to raise an issue of estoppel.

Carrera v. Bank of New York · filed 1989-09-25(a)(1)

Thus, the plaintiff has alleged sufficient facts to raise an issue as to estoppel (Rose v Spa Realty Assocs., 42 NY2d 338, 340-341; Pau v Bellavia, 145 AD2d 609, 610) precluding a dismissal on the ground that a defense is founded on documentary evidence (Rose v Spa Realty Assocs., supra; Citibank v Zibro Tire & Appliance Co., 72 AD2d 846).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it definitively disposes of the claim.

Bernstein v. Oppenheim & Co. · filed 1990-04-17(a)(1)

With respect to Oppenheim’s arguments that sufficient evidence was submitted pursuant to CPLR 3211 (a) (1) to establish a defense based upon documentary evidence to the malpractice claim, the submissions, at best, raised issues of fact. In order to prevail upon such a defense, the documents relied upon must definitively dispose of the plaintiff’s claim (Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303, 304), and the IAS court correctly concluded that none of the plaintiff’s claims which have been sustained by us were completely disposed of by defendant’s submissions.

Section 3211(a)(1) permits dismissal of a third-party complaint when documentary evidence sufficiently supports the motion.

Fitzpatrick v. American Honda Motor Co. · filed 1990-03-12(a)(1)

Under the facts herein, we conclude that the documentary evidence proffered by National was sufficient to support its motion to dismiss the third-party complaint (see, CPLR 3211 [a] [1]).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when an ambiguous contract fails to definitively dispose of the claim.

RWP Group, Inc. v. Resnick · filed 1990-10-09(a)(1)

Given the ambiguity in the contract of sale, we find that the Supreme Court properly denied the appellants’ motion to have the breach of warranty cause of action dismissed, since the documentary evidence did not definitively dispose of RWP’s claim (see, Halloran v Halloran, 161 AD2d 562).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes that a contract underlying a claim is unenforceable.

Constant v. Hallmark Cards, Inc. · filed 1991-04-15(a)(1)

Therefore, this documentary evidence conclusively establishes that the contract with Garber is not enforceable (see, CPLR 3211 [a] [1]).

Under CPLR 3211(a)(1) and (7), dismissal is improper when the complaint states a cause of action and the relied-upon document does not defeat the claim as a matter of law.

Sammarco Garden Center, Inc. v. Sammarco · filed 1991-05-06(a)(1) and (7)

We agree with the court’s conclusions that the complaint sufficiently states a cause of action and that the document on which the appellant relies is not dispositive of the plaintiffs right to relief as a matter of law.

CPLR 3211(a)(1) permits dismissal on documentary evidence when the documents resolve the factual issues as a matter of law.

Standard Chartered Bank v. D. Chabbott, Inc. · filed 1991-12-03(a)(1)

Such was achieved by defendant’s documentary evidence establishing that payments were made in excess of the debt owed for merchandise sold to it by plaintiff’s predecessor in interest.

Section 3211(a)(1) permits dismissal when documentary evidence establishes an affirmative defense.

C & N Camera & Electronics, Inc. v. Farmore Realty, Inc. · filed 1991-12-19(a)(1)

As defendant presented documentary evidence establishing its affirmative defenses, the court properly dismissed the complaint (CPLR 3211 [a] [1]; Lebowitz v Mingus, 100 AD2d 816).

Section 3211(a)(1) permits dismissal when documentary evidence definitively disposes of a claim.

Talbi v. ZCWK Associates · filed 1992-01-16(a)(1)

We agree with the defendants that it was error to deny their motion to dismiss the first cause of action pursuant to CPLR 3211 (a) (1) since the Offering Plan and purchase agreement definitively disposed of the plaintiff’s claim (Juliano v McEntee, 150 AD2d 524; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes a defense to the complaint.

Leeirv Corp. v. S & E Realty Co. · filed 1991-12-02(a)(1)

Inasmuch as the landlord’s consent was expressly contingent upon the tenant’s performance of its obligations, no consent was required to be given and the assignment clause of the lease constitutes a defense founded upon documentary ...evidence (see, CPLR 3211 [a] [1]; see generally, Lebowitz v Mingus, 100 AD2d 816).

A movant seeking dismissal under CPLR 3211(a)(1) must submit sufficient documentary proof to establish its claimed legal right.

Ultramar Energy Ltd. v. Chase Manhattan Bank · filed 1992-01-30(a)(1)

Not only is there a question as to whether Chase was entitled to these proceeds in light of the debtor’s non-performance of its contractual obligations and Chase’s failure to cure such nonperformance, but Chase, as a movant pursuant to, inter alia, CPLR 3211 (a) (1), has failed to meet its burden of submitting sufficient documentary proof of a legal right to proceeds connected with the circular sale sequence.

Section 3211(a)(1) permits dismissal when a contract establishes a defense founded upon documentary evidence.

Lutheran Medical Center v. Elderplan, Inc. · filed 1992-10-15(a)(1)

Thus there is a defense founded upon documentary evidence, namely, the contract and pursuant to CPLR 8211 (a) (1) the action must be dismissed.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively resolves the factual issues and disposes of the claim.

Fernandez v. Cigna Property & Casualty Insurance · filed 1992-12-03(a)(1)

Because, as previously noted, the essential elements of collateral estoppel are not met here, the judgment of conviction cannot operate as definitive or conclusive evidence of Fernandez’s culpability; at best it operates as persuasive or prima facie evidence thereof, a standard which falls short of that required to dismiss the complaint under CPLR 3211 (a) (1).

Documentary evidence warrants dismissal under CPLR 3211(a)(1) only if it definitively disposes of the claim.

Devlin v. Video Services Acquisition · filed 1992-12-10(a)(1)

We agree with the IAS Court that issues of fact exist with respect to all of the counterclaims that cannot be resolved solely on the pleadings and proffered documents.

A motion to dismiss based on documentary evidence requires a document that definitively disposes of the claim; an unsupported financial statement does not suffice.

United States Trust Co. v. Gill & Duffus, Inc. · filed 1993-01-14(a)(1)

Under such circumstances, the bare Statement submitted by defendants in support of their motion pursuant to CPLR 3211 (a) (1) is hardly dispositive of the issues.

Section 3211(a)(1) allows an objection based on documentary evidence, including a motion and order compelling arbitration.

In re the Arbitration between Shearson Lehman Bros. & Rinzler · filed 1993-01-21(a)(1)

Consequently, this court will treat the case as though Rinzler objected in point of law raising a defense based on documentary evidence (CPLR 3211 [a] [1]), to wit, the motion and order in the New Jersey action to compel arbitration.

A documentary evidence defense under CPLR 3211(a)(1) can succeed when the submitted documents resolve all factual issues as a matter of law.

Gephardt v. Morgan Guaranty Trust Co. · filed 1993-03-09(a)(1)

It is well settled that a defense based on documentary evidence can succeed if the documents submitted resolve all of the factual issues as a matter of law (Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112).

A document supports dismissal under CPLR 3211(a)(1) only if it conclusively disposes of the plaintiff’s claim.

Mest Management Corp. v. Double M Management Co. · filed 1993-12-27(a)(1)

In order to prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), the document relied upon must conclusively dispose of the plaintiff’s claim (see, Sammarco Garden Ctr. v Sammarco, 173 AD2d 456; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law.

Weiss v. Cuddy & Feder · filed 1994-01-24(a)(1)

Moreover, in order to prevail on a defense based upon documentary evidence (see, CPLR 3211 [a] [1]), the documents relied upon must resolve all of the factual issues as a matter of law (see, Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303; Reilly v Town of Brookhaven, 34 AD2d 1001).

Section 3211(a)(1) permits dismissal when documentary evidence definitively disposes of the plaintiff's claim.

R.W.P. Group, Inc. v. Holzberg · filed 1994-03-07(a)(1)

In addition, since the documentary evidence submitted by the defendants "definitively dispose[d] of [the] plaintiffs claim” (Juliano v McEntee, 150 AD2d 524, 525), dismissal of the complaint was also proper under CPLR 3211 (a) (1).

CPLR 3211 (a) (5) permits dismissal of a cause of action that cannot be maintained because the plaintiff executed a release.

Roster v. Communications · filed 1994-05-02(a)(5)

CPLR 3211 (a) (5) provides that a party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the execution of a release.

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes that the defendant has no personal liability.

Roy C. Knapp & Sons, Inc. v. Weiss · filed 1994-05-09(a)(1)

We agree with the Supreme Court’s conclusion that the defendant Murray Weiss adduced persuasive documentary evidence (CPLR 3211 [a] [1]) establishing that he was neither a general partner nor limited partner in the defendant limited partnership, subject to potential liability pursuant to Partnership Law § 96. Accordingly, he demonstrated his freedom from personal liability (see, Hoffman v Eisenberg, 140 AD2d 306) and thus, the complaint was properly dismissed as against him.

Documentary evidence warrants dismissal only if it conclusively establishes a defense to the claims as a matter of law.

Leon v. Martinez · filed 1994-07-07(a)(1)

Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157).

CPLR 3211(a)(5) does not warrant dismissal based on a release when a factual issue remains about whether the defendant violated its terms, allowing the plaintiff to pursue its claims.

Popular Construction Inc. v. Bhutta · filed 1994-10-03(a)(5)

Since there remains an issue of fact as to whether the defendant violated the terms of the stipulations and releases, giving the plaintiff a right to pursue claims against the defendant, the court correctly denied the defendant’s cross motion to dismiss the action pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal of claims already resolved by a settlement stipulation and an arbitration award.

DiBenedetto v. Ryan · filed 1994-10-24(a)(5)

To the extent that the grievances set forth in the instant complaint were already settled by the stipulation of 1987 and pursuant to an arbitration award in 1988, the instant action was properly dismissed pursuant to CPLR 3211 (a) (5) (see, CPLR 7511; Home Ins. Co. v Country-Wide Ins. Co., 134 AD2d 570, 571; Matter of Biller [David], 37 AD2d 954).

CPLR 3211(a)(1) does not warrant dismissal when documentary evidence does not definitively dispose of the complaint’s liability issues.

Nuzzo v. Griffin Technology Inc. · filed 1995-02-03(a)(1)

Thus, because the contract does not establish conclusively that the duty to insure exceeded the scope of the duty to indemnify, that documentary evidence does not definitively dispose of the issues of liability presented by the third-party complaint.

On a motion to dismiss based on documentary evidence, the documents must definitively dispose of the plaintiff’s claim.

Knolls, Inc. v. Webster Town Center Partnership · filed 1995-11-21(a)(1)

In order to prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), the documents relied upon must definitively dispose of plaintiff’s claim (Juliano v McEntee, 150 AD2d 524, 525; Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477).

CPLR 3211(a)(7) does not require dismissal when the complaint states a viable claim despite a factual dispute, and documentary evidence does not warrant dismissal under (a)(1) when it leaves that dispute for trial.

Cascons v. Frank · filed 1996-02-08(a)(1), (a)(7)

The IAS Court properly denied the individual defendants’ motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) and on the basis of a defense founded upon documentary evidence (CPLR 3211 [a] [1]). ... Rather than dispose of the retention issue, the documentary evidence relied upon to refute the claim graphically demonstrates, in our view, the need for a trial to resolve the issue.

A lease does not support dismissal under CPLR 3211(a)(1) unless it definitively disposes of the claim.

Jacob Holm, Inc. v. Hermon · filed 1996-02-06(a)(1)

The lease therefore does not "definitively dispose of the claim” (Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Vanderminden v. Vanderminden · filed 1996-04-25(a)(1)

To dismiss a cause of action based on CPLR 3211 (a) (1), defendants must show that "the documentary evidence that forms the basis of [this] defense must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff’s claim” (Fernandez v Cigna Prop. & Cas. Ins. Co., 188 AD2d 700, 702; see, Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873, 874).

Section 3211(a)(1) does not permit preanswer dismissal based on documentary evidence when material questions of fact remain.

Khayyam v. Doyle · filed 1996-09-26(a)(1)

There exist numerous questions of fact with respect to the intent and meaning of the guaranty sued on herein and the effect of the bankruptcy proceeding on the underlying mortgage, which was personally guaranteed by plaintiffs, precluding preanswer dismissal of the action based on the documentary evidence supplied to the motion court.

Under CPLR 3211(a)(1), a lease clause limiting liability for defaults does not support dismissal when the pleaded claims arise from conduct outside performance of the lease.

Haxn Haus of New York, Inc. v. A&M Realty Co. · filed 1996-11-08(a)(1)

Supreme Court erred in granting the motion of defendants Alex Schmidt and Mark Schmidt to dismiss the complaint against them on the ground that they have a defense founded upon documentary evidence (see, CPLR 3211 [a] [1]). ... Accepting the facts alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference (see, Leon v Martinez, 84 NY2d 83, 87-88), we nevertheless conclude that none of the causes of action arises out of what may properly be regarded as a default in the performance of the lease.

Section 3211(a)(1) permits dismissal on documentary evidence only when the document conclusively establishes the asserted defense.

Kitchen & Bath Creations, Ltd. v. Guardian Life Insurance Co. of America · filed 1996-12-19(a)(1)

We find that it was error for the court to dismiss the complaint on documentary evidence pursuant to CPLR 3211 (a) (1) and (7) solely on the basis of the “Conditional Receipt” submitted by defendant, which concededly does not include the explicit reservation to change the beneficiary.

Under CPLR 3211(a)(1), documentary evidence must conclusively and definitively dispose of a claim to support dismissal.

Niagara Frontier Transportation Authority v. Patterson-Stevens, Inc. · filed 1997-03-14(a)(1)

Because Patterson’s agreement in the letter was conditional, it cannot be said that the letter conclusively and definitively disposes of Patterson’s claims, as required on a motion to dismiss pursuant to CPLR 3211 (a) (1) (see, Leon v Martinez, 84 NY2d 83, 88; Unadilla Silo Co. v Ernst & Young, 234 AD2d 754).

CPLR 3211(a)(1) requires documentary evidence to definitively establish the basis for dismissal.

Chemical Bank v. Stahl · filed 1997-03-27(a)(1)

As to landlord’s responsibility as a matter of fact, the documentary evidence does not definitively establish defendant’s position, as would be necessary to grant the branch of the motion based on CPLR 3211 (a) (1) (see, Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477).

A motion under CPLR 3211(a)(1) fails when the movant does not submit the insurance policy needed to establish its documentary-evidence defense.

Apollon Waterproofing & Restoration Corp. v. Brandt · filed 1997-04-11(a)(1)

Having failed to submit the necessary insurance policy in support of its motion, U.S. Liability’s CPLR 3211 (a) (1) motion must fail.

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it conclusively establishes a defense as a matter of law.

Davidson Metals Corp. v. Marlo Development Co. · filed 1997-04-21(a)(1)

The Supreme Court also properly denied that branch of Mario’s motion which was to dismiss Davidson’s cause of action to recover damages for breach of contract, since the documentary evidence submitted did not conclusively establish a defense to that claim as a matter of law (see, Leon v Martinez, 84 NY2d 83, 88, citing Heany v Purdy, 29 NY2d 157; Juliano v McEntee, supra).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence definitively disposes of the claim.

Fischbach & Moore, Inc. v. E.W. Howell Co. · filed 1997-06-03(a)(1)

A motion to dismiss a complaint can be granted pursuant to CPLR 3211 (a) (1) only if the movant presents documentary evidence that will "definitively dispose of the claim” (Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477).

Under CPLR 3211(a)(1), documentary evidence warrants dismissal when it resolves all factual issues as a matter of law and definitively disposes of the claim.

Maas v. Cornell University · filed 1997-12-11(a)(1)

Because the documentary evidence in the record resolves all factual issues as a matter of law and definitively disposes of this cause of action (see, Unadilla Silo Co. v Ernst & Young, 234 AD2d 754, 755), Supreme Court did not err in dismissing it (see, CPLR 3211 [a] [1]).

Documentary evidence can support dismissal of a facially sufficient complaint when it flatly contradicts the factual claims or conclusively establishes a defense.

Smuckler v. Mercy College · filed 1997-11-03(a)(1)

A complaint which is sufficient on its face may be dismissed if the factual claims are “flatly contradicted by documentary evidence” (Gertler v Goodgold, 107 AD2d 481, 485, affd 66 NY2d 946; see, Doria v Masucci, 230 AD2d 764), or if documentary evidence conclusively establishes a defense to the asserted claims (see, Leon v Martinez, supra).

Section 3211(a)(1) does not support dismissal based on documentary evidence that leaves factual issues unresolved.

Barghout v. Dweck · filed 1997-11-13(a)(1)

Defendants’ submission of various letters, memorandums and draft agreements do not establish a defense founded upon ...documentary evidence (CPLR 3211 [a] [1]), because they do not resolve all of the factual issues (see, Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873, 874).

On a motion to dismiss, factual allegations flatly contradicted by documentary evidence need not be accepted as true.

Kalivia Food Corp. v. Hunts Point Cooperative Market, Inc. · filed 1997-11-17(a)(1)

It is well-settled that while, on a motion to dismiss, the facts pleaded are presumed to be true and are accorded every favorable inference, it has also been held that factual claims which are inherently or flatly contradicted by documentary evidence are not entitled to the same consideration (see, Stuart Lipsky, P. C. v Price, 215 AD2d 102; Zigabarra v Falk, 143 AD2d 901).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence definitively disposes of the plaintiff’s claim.

Kalmon Dolgin Affiliates of Long Island, Inc. v. Robert Plan Corp. · filed 1998-03-23(a)(1)

Since the documentary evidence relied upon by the appellants did not definitively dispose of the plaintiff’s claim, the Supreme Court properly denied their motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them (see, R.W.P. Group v Holzberg, 202 AD2d 410, 411; Juliano v McEntee, 150 AD2d 524; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303).

Under subsection (a)(1), a prior order does not support dismissal unless it incontrovertibly establishes that the plaintiff cannot prevail.

Weiner v. Hershman & Leicher, P. C. · filed 1998-03-12(a)(1)

Initially, we note that the IAS Court properly denied defendants’ motion pursuant to CPLR 3211 (a) (1). The only documentary evidence presented to the motion court was the prior order of the Queens Supreme Court granting summary judgment to the defendants in the underlying slip and fall case. This order was not incontrovertible proof that plaintiff would not prevail upon appeal.

Under CPLR 3211(a), documentary evidence does not support dismissal when it is rebutted and fails to conclusively establish a defense as a matter of law.

Cannistra v. McCullough · filed 1998-03-23(a)

Further, the documentary evidence submitted by the O’Connor defendants did not “conclusively establish * * * a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88) since it was rebutted by the plaintiffs.

CPLR 3211 permits dismissal when documentary evidence conclusively establishes a defense to the complaint.

Silverman v. Schwartz · filed 1998-03-31(a)(1)

We note in addition that even if plaintiff had standing, the complaint would have been properly dismissed on the ground that the documentary evidence offered by defendants conclusively establishes that the Loral Corporation was contractually bound to make the payment to which plaintiff objects.

Under CPLR 3211(a)(1), documentary evidence must establish a defense as a matter of law to warrant dismissal.

Realty Investors of USA, Inc. v. Bhaidaswala · filed 1998-10-22(a)(1)

Because we conclude that the documentary evidence proffered in support of defendants’ motion by no means established a defense to plaintiffs cause of action as a matter of law, we are constrained to reverse Supreme Court’s order and judgment and deny the motion.

Section 3211(a)(1) permits dismissal when documentary evidence is dispositive and the plaintiff offers insufficient evidence to contradict it.

Sung v. Hong · filed 1998-10-05(a)(1)

The explicit and unambiguous information included in the application, which the plaintiff and the broker signed, indicates that the plaintiff requested the statutory minimum underinsurance coverage of $10,000 (see, CPLR 3211 [a] [1]; see also, Bronxville Knolls v Webster Town Ctr. Partnership, 221 AD2d 248). As the plaintiff failed to present sufficient evidence to contradict the contents of the application, the application was dispositive of the plaintiff’s claim. Therefore, the Supreme Court erred in denying the defendant’s motion to dismiss the complaint.

A motion to dismiss under CPLR 3211(a)(1) and (5) requires documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Scadura v. Robillard · filed 1998-12-28(a)(1) and (5)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1) and (5), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see, Leon v Martinez, 84 NY2d 83, 87-88; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460; Fernandez v Cigna Prop. & Cas. Ins. Co., 188 AD2d 700).

Under CPLR 3211(a)(1) and (7), a breach of contract claim can survive dismissal when its allegations are sufficient and contested contract provisions may support the alleged obligation.

Yatter v. William Morris Agency, Inc. · filed 1998-12-29(a)(1), (a)(7)

As to plaintiffs first cause of action for breach of contract, we find that plaintiffs allegations are sufficient to withstand defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) and (7). ... As to the documentary evidence defense, in our view, the IAS Court erred in concluding at this stage of the litigation that the contested provisions of the shareholders’ agreement cannot be read to impose any obligation on defendant to disapprove the accountants’ valuation of a departing employee’s stock under any circumstances.

CPLR 3211(a)(5) permits dismissal on the ground of payment when allegations of unpaid claims are unsupported by the record.

Duffy v. Wetzler · filed 1999-04-26(a)(5)

The Supreme Court properly dismissed the complaint on the ground of payment. The plaintiffs’ conclusory allegations that the defendants failed to pay full refunds plus interest to all Federal retirees who filed timely refund claims are unsupported by the record.

A motion to dismiss based on documentary evidence fails when the evidence does not definitively dispose of the plaintiff’s claims.

Siddiqui v. Nationwide Mutual Insurance · filed 1999-04-01(a)(1)

Based on the foregoing, the documentary evidence does not definitively dispose of plaintiffs claims and we find no reason to overturn Supreme Court’s denial of Nationwide’s motion to dismiss.

Section 3211(a)(1) permits pre-answer dismissal based on documentary evidence only when that evidence establishes a defense to the claims as a matter of law.

Bonnie & Co. Fashions v. Bankers Trust Co. · filed 1999-06-22(a)(1)

On a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1), a dismissal is proper only when the documentary evidence submitted establishes a defense to the asserted claims as a matter of law (Leon v Martinez, 84 NY2d 83, 88).

Under CPLR 3211(a)(1), a format letter does not qualify as documentary evidence when the court must look outside it to decide the motion.

Brown v. Solomon & Solomon, P. C. · filed 1999-05-21(a)(1)

Based upon the definition set forth above, this court finds that, while the first two of these items fall within the purview of what may be considered by the court as documentary evidence, the latter one fails to constitute documentary evidence within the meaning of CPLR 3211 (a) (1). More specifically, the court finds that, while a copy of the actual letter that was sent to plaintiff would constitute documentary evidence, the copy of the format letter submitted by defendant requires the court to look outside said document for information pertinent to its determination of the matter.

Section 3211(a)(1) permits dismissal when undisputed documentary evidence and the plaintiff’s admissions defeat the alleged basis for a claim.

Friedman v. Fife · filed 1999-06-17(a)(1)

Supreme Court properly granted defendant’s motion to dismiss. In light of the undisputed documentary evidence and plaintiffs admissions, none of the misstatements alleged by plaintiff can support his causes of action for fraud, fraudulent ... concealment or negligent misrepresentation.

Section 3211(a)(1) permits dismissal based on documentary evidence only when the evidence resolves the factual issues as a matter of law and definitively disposes of the claim.

European American Bank v. Miller · filed 1999-10-12(a)(1)

The Supreme Court erred when it granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). The documentary evidence submitted by the defendant did not contradict the complaint’s factual claims (see, Smuckler v Mercy Coll., 244 AD2d 329) or resolve all factual issues as a matter of law and definitively dispose of the plaintiffs claim (see, Roth v Goldman, 254 AD2d 405).

Documentary evidence supports dismissal under CPLR 3211(a)(1) when it conclusively establishes a defense to the claims as a matter of law.

Rickson v. Town of Schuyler Falls · filed 1999-07-22(a)(1)

To prevail on a defense founded upon documentary evidence, it must “conclusively establish! ] a defense to the asserted claims as a matter of law” (id., at 88).

Under CPLR 3211(a)(1), documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff’s claim to support dismissal.

Brunot v. Joe Eisenberger & Co. · filed 1999-11-22(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see, Scadura v Robillard, 256 AD2d 567; Leon v Martinez, 84 NY2d 83, 87-88; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460). Here, the documentary evidence submitted by the defendant in support of its motion failed to meet that burden.

CPLR 3211(a)(1) requires documentary evidence that conclusively establishes a defense as a matter of law.

IMO Industries Inc. v. Anderson Kill & Olick, P. C. · filed 1999-12-02(a)(1)

As the proponent of a dismissal motion pursuant to CPLR 3211 (a) (1), the Anderson firm was required to provide documentary evidence which “conclusively established] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88), which it failed to do.

Section 3211(a)(1) permits dismissal when documentary evidence establishes that a plaintiff ratified a contract and waived fraud claims.

Moweta v. Citywide Home Improvements of Queens, Inc. · filed 1999-12-27(a)(1)

The Supreme Court properly determined, based on the documentary evidence (see, CPLR 3211 [a] [1]), that the plaintiffs ratified the subject contract, note, and mortgage by making payments thereon to the respondents for five years without protest, and in so doing, waived all claims sounding in fraud (see, Eldon Group Am. v Equiptex Indus. Prods. Corp., 236 AD2d 329; Paramount Ins. Co. v Brown, 205 AD2d 464, 465; Lindenwood Dev. Corp. v Levine, 178 AD2d 633; Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249).

Under CPLR 3211(a)(1) and (7), dismissal is improper when the defendant’s documentary evidence is sufficiently contradicted and the complaint states a claim.

Peppe v. All Taxi Management, Inc. · filed 2000-03-23(a)(1), (a)(7)

Defendants’ cross motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) was properly denied. The documentary evidence ... submitted by defendants to support their assertion that they were not the title owners of the taxicab in which plaintiff was injured is sufficiently contradicted by plaintiffs evidence to the contrary ... and plaintiffs complaint states” a claim for vicarious liability.

Under CPLR 3211(a)(1), the defendant must show that documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Nevin v. Laclede Professional Products, Inc. · filed 2000-06-26(a)(1)

With respect to the branch of the defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) the defendant failed to meet its burden of showing that the documentary evidence submitted resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see, Leon v Martinez, 84 NY2d 83, 87-88; Brunot v Eisenberger & Co., 266 AD2d 421).

Section 3211(a)(5) permits dismissal on collateral estoppel grounds when the claimant had a fair opportunity to litigate the issue previously decided against them.

Becker v. State · filed 2000-07-31(a)(5)

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the claim is dismissed.

Under CPLR 3211(a)(1), documentary evidence warrants dismissal when it conclusively establishes a defense to the claims as a matter of law.

IT Corp. v. Ecology & Environmental Engineering, P. C. · filed 2000-09-29(a)(1)

Supreme Court properly granted that part of defendant’s motion seeking dismissal of the first three causes of action based on a defense “founded upon documentary evidence” (CPLR 3211 [a] [1]). ... We therefore conclude that “the documentary evidence submitted [by defendant] conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88).

Under CPLR 3211, documentary evidence does not warrant dismissal when it leaves a factual question about a contractual condition.

Atlas Organization, Inc. v. Barington Capital Group, L.P. · filed 2000-10-19

The IAS Court correctly declined to dismiss plaintiff broker’s claim for breach of contract since defendant’s documentary evidence was insufficient to establish, as a matter of law, that plaintiff’s entitlement to a commission had been conditioned upon the landlord’s consent to defendant tenant’s sublease of the subject premises.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Scott v. Bell Atlantic Corp. · filed 2001-05-10(a)(1)

The test on a CPLR 3211 (a) (1) motion is whether the documentary evidence submitted “conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88; IMO Indus. v Anderson Kill & Olick, 267 AD2d 10, 11).

Section 3211(a)(1) permits dismissal of a cross claim only when documentary evidence definitively disposes of it.

Bank v. Lake · filed 2001-06-11(a)(1)

A motion to dismiss a cross claim can be granted pursuant to CPLR 3211 (a) (1) only if the movant presents documentary evidence that “definitively dispose [s] of the * * * claim” (Roth v Goldman, 254 AD2d 405, 406).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Teitler v. Max J. Pollack & Sons · filed 2001-11-13(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see, Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Museum Trading Co. v Bantry, 281 AD2d 524; Jaslow v Pep Boys — Manny, Moe & Jack, 279 AD2d 611; Brunot v Eisenberger & Co., 266 AD2d 421).

Under CPLR 3211(a)(1), documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the claim to warrant dismissal.

Gorilla Realty, L. L. C. v. SLK Westbury, L. L. C. · filed 2001-11-19(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see, Brunot v Eisenberger & Co., 266 AD2d 421; Scadura v Robillard, 256 AD2d 567). The documentary evidence submitted by the defendants in support of their motion satisfied that burden, and the Supreme Court properly dismissed the complaint.

A CPLR 3211(a) motion may be granted when unambiguous documents establish the nature of the transaction and leave no need for parol evidence.

D & L Holdings, LLC v. RCG Goldman Co., LLC · filed 2001-12-06(a)

These established, unambiguous facts support the exclusion of parol evidence, and require that the action be dismissed. ... Accordingly, the order of the Supreme Court, New York County (Robert Lippmann, J.), entered July 2, 2001, which denied RCG’s motion to dismiss the complaint pursuant to CPLR 3211 (a), should be reversed, on the law, with costs, and the motion granted.

Section 3211(a)(1) requires dismissal of claims flatly contradicted by documentary evidence, even though pleadings are liberally construed.

Igarashi v. Higashi · filed 2001-12-18(a)(1)

While pleadings should be liberally construed on a motion to dismiss, claims “flatly contradicted by documentary evidence” must be rejected (see, Kliebert v McKoan, 228 AD2d 232, lv denied 89 NY2d 802).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense as a matter of law.

Technology for Measurement, Inc. v. Briggs · filed 2002-02-01(a)(1)

The court properly denied defendant’s motion. With respect to that part of the motion seeking dismissal of the complaint based on documentary evidence (see, CPLR 3211 [a] [1]), “dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88; see, Roth v Goldman, 254 AD2d 405, 406).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Butler v. McCarty · filed 2002-03-15(a)(1)

Defendants’ motion based upon documentary evidence must be denied. In order to justify dismissal of a complaint based upon the mere production of documentary evidence, such evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs claim.

Section 3211(a)(1) permits dismissal when documentary evidence establishes facts that defeat the complaint.

Goel v. Indotronix International Corp. · filed 2002-04-22(a)(1)

The documentary evidence established that the plaintiff was suspended from the practice of law throughout his employment with the defendant Indotronix International Corp. (see CPLR 3211 [a] [1]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense to the action.

Laruccia v. Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP · filed 2002-06-03(a)(1)

The Supreme Court properly dismissed the complaint based ...upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83).

CPLR 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense as a matter of law.

511 West 232nd Owners Corp. v. Jennifer Realty Co. · filed 2002-06-11(a)(1)

Dismissal under CPLR 3211 (a) (1) is warranted “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon, 84 NY2d at 88; see generally Siegel, NY Prac § 269, at 428 [3d ed]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

Goshen v. Mutual Life Insurance · filed 2002-07-02(a)(1)

Turning to defendants’ CPLR 3211 (a) (1) motion to dismiss on the ground that the action is barred by documentary evidence, such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law (see Leon, 84 NY2d at 88).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the plaintiff’s allegations and conclusively establish a defense to warrant dismissal.

Walton Management, LLC v. Walton Apartments, LLC · filed 2002-10-24(a)(1)

The documentary evidence does not “utterly refute” plaintiffs’ allegations and conclusively establish defendant’s claim that plaintiffs canceled the contract (see Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326).

Section 3211(a)(1) permits dismissal when documentary evidence flatly contradicts the complaint’s factual claims.

Purchase Environmental Protective Ass'n v. Related Properties, Inc. · filed 2002-10-28(a)(1)

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting the respondents’ separate motions to dismiss the complaint based upon docu...mentary evidence that flatly contradicted the factual claims contained in the complaint (see CPLR 3211 [a] [1]; cf. Smuckler v Mercy Coll., 244 AD2d 329, 330).

Documentary evidence supports dismissal only when it resolves all factual issues as a matter of law and conclusively disposes of the claim.

New York Community Bank v. Snug Harbor Square Venture · filed 2002-11-04(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must resolve all factual issues as a matter of law, and ... conclusively dispose of the plaintiffs claim (see Teitler v Pollack & Sons, 288 AD2d 302; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460).

Section 3211(a)(1) permits dismissal when documentary evidence establishes that the plaintiff has no right to the contractual payment sought.

Pine v. Coppola N.Y.C., Inc. · filed 2002-11-19(a)(1)

In view of the documentary evidence establishing that plaintiff breached the parties’ settlement agreement by failing to timely return certain records to defendant-respondent and by failing to secure reregistration of Internet domain name Petercoppola.com, plaintiff, pursuant to the agreement’s express terms, forfeited any right to payment thereunder. Plaintiff’s complaint, seeking to recover proceeds allegedly due plaintiff pursuant to the agreement, was thus properly dismissed (see CPLR 3211 [a] [1]).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it conclusively establishes a defense.

Kiss Nail Products, Inc. v. CGU Insurance · filed 2002-11-25(a)(1)

Contrary to the appellant’s contention, it was not entitled to dismissal of the complaint based upon documentary evidence of the subject insurance policy (see CPLR 3211 [a] [1]; Trade Source v Westchester Wood Works, 290 AD2d 437). The policy did not conclusively establish a defense, since the plaintiff raised significant issues of fact as to precisely when the underlying property damage occurred and whether the appellant was notified of the damage as soon as practicable (see Kim v Maher, 226 AD2d 350; Reynolds Metal Co. v Aetna Cas. & Sur. Co., 259 AD2d 195).

Section 3211(a)(1) permits dismissal when the terms of a lease conclusively refute the complaint’s claim.

Beyond Noble, Inc. v. 6056 Leasehold Co. · filed 2003-02-18(a)(1)

The complaint was properly dismissed since the terms of the parties’ lease conclusively refute plaintiffs claim that the lease was breached when defendant landlord withheld from plaintiff tenant permission for alterations necessary to render the demised premises suitable for use as a nail salon.

Section 3211(a)(1) permits dismissal when documentary evidence establishes a defense and the plaintiff fails to raise a factual question requiring denial of the motion.

Palmieri v. Higgins · filed 2003-02-03(a)(1)

The defendant established his entitlement to dismissal of the complaint by way of documentary evidence showing that he properly cancelled the contract in accordance with paragraph 22 of the contract and paragraph 30 of the rider to the contract. In response, the plaintiffs failed to show the existence of a factual question requiring the denial of the motion to dismiss the complaint.

Under CPLR 3211(a)(1), the defendant must show that documentary evidence conclusively resolves all factual issues and defeats the claims as a matter of law.

Robinson v. Robinson · filed 2003-03-13(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant has the burden of demonstrating that the documentary evidence conclusively resolves all factual issues and that plaintiffs claims fail as a matter of law (see Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383 [2002]).

Section 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim.

Estate of Menon v. Menon · filed 2003-03-24(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Roth v Goldman, 254 AD2d 405, 406 [1998]).

Section 3211(a)(1) permits dismissal of an insurance coverage complaint when the policy submitted as documentary evidence does not name the claimant as an additional insured.

Moleon v. Kreisler Borg Florman General Construction Co. · filed 2003-04-03(a)(1)

Substantively, we find that the motion court erred in failing to dismiss the complaint based on documentary evidence (CPLR 3211 [a] [1]). ... Here, Utica presented the policy which did not name Sentry as an additional insured.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes that the defendant fulfilled its obligations.

Wasan Shoes Ltd. v. Baker · filed 2003-04-08(a)(1)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered January 8, 2002, which, upon the prior grant of the motion of defendant Citibank, N.A. pursuant to CPLR 3211 (a) (1), dismissed the complaint as against that defendant, unanimously affirmed, with costs. ... As the motion court found, however, the documentary evidence conclusively showed that Citibank followed the instruction of Cañara Bank to “deliver the documents against acceptance,” which was consistent with the provisions in the bills of exchange advising that they were variously payable 15, 20 or 45 days after presentment.

Under CPLR 3211(a)(1), affidavits do not constitute documentary evidence and should not be considered on a motion to dismiss based on documentary evidence.

Berger v. Temple Beth-El of Great Neck · filed 2003-03-03(a)(1)

Here, the defendants’ submissions in support of their motion included two affidavits which should not have been considered by the Supreme Court on a motion to dismiss pursuant to CPLR 3211 (a) (1) because they do not constitute documentary evidence (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 20).

A motion to dismiss based on documentary evidence may be granted only when that evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

730 J & J LLC v. Fillmore Agency, Inc. · filed 2003-03-10(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]).

A defendant seeking dismissal under CPLR 3211(a)(1) must present documentary evidence that establishes the asserted defect as a matter of law.

Behrins & Behrins, P.C. v. Chan · filed 2003-05-05(a)(1)

The Supreme Court properly denied the defendant’s motion to dismiss the action pursuant to CPLR 3211 (a) (1). ... The defendant’s documentary evidence submitted in support of her motion did not make out a prima facie case that, as a matter of law, the plaintiff failed to substantially comply with 22 NYCRR part 1400 et seq.

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

New York Schools Insurance Reciprocal v. Gugliotti Associates, Inc. · filed 2003-05-19(a)(1)

“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Teitler v Pollack & Sons, 288 AD2d 302 [2001]; see Held v Kaufman, 91 NY2d 425, 430-431 [1998]).

CPLR 3211(a)(1) warrants dismissal when documentary evidence conclusively refutes the complaint’s allegations, even if those allegations would otherwise survive a pleading challenge.

Baystone Equities, Inc. v. Gerel Corp. · filed 2003-05-20(a)(1)

While plaintiffs allegations in this action for, inter alia, specific performance of contracts for the sale of real property are, broadly construed, sufficient to withstand dismissal pursuant to CPLR 3211 (a) (7), they are nonetheless conclusively refuted by the documentary evidence and, accordingly, dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (1) (see Igarashi v Higashi, 289 AD2d 128 [2001]).

Under CPLR 3211(a)(1), documentary evidence warrants dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Tougher Industries, Inc. v. Northern Westchester Joint Water Works · filed 2003-04-28(a)(1)

Furthermore, dismissal of the complaint is not warranted based upon documentary evidence (see CPLR 3211 [a] [1]) because the evidence submitted was not such that it “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2003]; see Kiss Nail Prods. v CGU Ins. Co., 299 AD2d 524 [2002]).

A pleading filed by a party’s agent in another action may qualify as documentary evidence under CPLR 3211 (a) (1).

Morgenthow & Latham v. Bank of New York Co. · filed 2003-05-20(a)(1)

It is clear, therefore, that the IAS court properly relied upon FIPM’s allegations in the federal action as documentary evidence under CPLR 3211 (a) (1).

Section 3211(a)(1) permits dismissal when documentary evidence and undisputed facts dispose of the claims or conclusively establish a defense.

Silvester v. Time Warner, Inc. · filed 2003-06-20(a)(1)

However, where documentary evidence and undisputed facts negate or dispose of the claims in the complaint or conclusively establish a defense, dismissal may be granted pursuant to CPLR 3211 (a) (1).

A motion to dismiss based on documentary evidence succeeds only when that evidence resolves all factual issues as a matter of law and definitively disposes of the claim.

Morrow v. MVP Health Plan, Inc. · filed 2003-07-24(a)(1)

“ ‘To succeed on a motion under CPLR 3211 (a) (1), a defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law and definitively disposes of the plaintiffs claim’” ... We conclude that the parties’ agreement is unambiguous and precludes recovery of the commissions sought here.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Morris v. Morris · filed 2003-06-23(a)(1)

Likewise, to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]). ... The documentary evidence submitted by the defendants failed to establish a defense to these causes of action as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense as a matter of law.

Richbell Information Services, Inc. v. Jupiter Partners, L.P. · filed 2003-09-23(a)(1)

Moreover, when the motion is based upon documentary evidence, ‘‘[d]ismissal under CPLR 3211 (a) (1) is warranted ‘only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law’ ” (id. [emphasis added], quoting Leon v Martinez, 84 NY2d 83, 88 [1994], and citing Siegel, NY Prac § 269, at 428 [3d ed]; see also Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents conclusively establish a defense as a matter of law.

Sheila C. v. Povich · filed 2003-11-12(a)(1)

When a motion to dismiss is based upon documentary evidence, “[dismissal under CPLR 3211 (a) (1) is warranted ‘only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law’ ” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]). The proffered contracts shed no light on the actual degree of control any defendant had over any other defendant, and they reveal no information on the relationship of Studio USA Talk Television to Mr. Povich or the other corporate defendants. Accordingly, these documents are inadequate to support dismissal of the complaint as requested.

Section 3211(a)(1) warrants dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Excel Graphics Technologies, Inc. v. CFG/AGSCB 75 Ninth Avenue · filed 2003-11-18(a)(1)

Pursuant to CPLR 3211 (a) (1), where the “documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law,” dismissal is warranted (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) warrants dismissal when documentary evidence definitively contradicts the plaintiff’s allegations and conclusively disposes of the claim.

Berardino v. Ochlan · filed 2003-12-15(a)(1)

Where documentary evidence definitively contradicts the plaintiffs factual allegations and conclusively disposes of the plaintiffs claim, dismissal pursuant to CPLR 3211 (a) (1) is warranted (see Prudential Wykagyl/Rittenberg Realty v Calabria-Maher, 2 AD3d 422 [2003]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329 [2002]).