N.Y. C.P.L.R. § 3211

An ambiguous agreement that may require parol evidence does not warrant dismissal based on documentary evidence under CPLR 3211(a)(1).

Ronbet 366 LLC v. Tobias · filed 2003-10-16(a)(1)

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about September 9, 2002, which, to the extent appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), unanimously affirmed, with costs. ... At the very least, this apparent disparity constitutes an ambiguity appropriately clarified by the receipt of parol evidence (see e.g. Sound Distrib. Corp. v Richmond, 213 AD2d 178 [1995], lv denied 86 NY2d 702 [1995]).

Under CPLR 3211(a)(1), evidence offered to dismiss a cause of action must conclusively establish a defense to it.

Chazen v. Person/Wolisky, Inc. · filed 2003-10-27(a)(1)

The defendant failed to produce sufficient evidence to conclusively establish a defense to that cause of action (see CPLR 3211 [a] [1]; Held v Kaufman, 91 NY2d 425 [1998]; Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]; Jaslow v Pep Boys-Manny, Moe & Jack, 279 AD2d 611 [2001]).

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.

Prudential Wykagyl/Rittenberg Realty v. Calabria-Maher · filed 2003-11-10(a)(1)

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 plaintiffs claim (see Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]).

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

Hamilton Group (Delaware), Inc. v. Federal Home Loan Bank of New York · filed 2003-11-21(a)(1)

Because we conclude that the documentary evidence submitted by Federal does not conclusively establish a defense to the asserted claims as a matter of law (see generally Leon v Martinez, 84 NY2d 83, 88 [1994]; Technology for Measurement v Briggs, 291 AD2d 902, 903 [2002]), we reverse the order, deny the motion of Federal, and reinstate the complaint against it.

Section 3211(a)(1) permits dismissal when uncontroverted documentary evidence bars the claims.

Cornhusker Farms, Inc. v. Hunts Point Cooperative Market, Inc. · filed 2003-12-11(a)(1)

These causes of action are barred by uncontroverted documentary evidence, namely, the June 2000 letter agreement and the revised construction budget annexed thereto.

Section 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and definitively disposes of the claims.

Randazzo v. Gerber Life Insurance · filed 2004-01-12(a)(1)

Fursuant to CPLR 3211 (a) (1), dismissal of the complaint is warranted where the documentary evidence resolves all factual issues as a matter of law and definitively disposes of the asserted claims ... Thus, the Supreme Court properly granted the defendant’s motion to dismiss the complaint.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense to the claims.

Riordan v. BOCES of Rochester · filed 2004-02-11(a)(1)

Supreme Court erred in granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) and in denying plaintiffs cross motion for discovery. ... Although the documentary evidence submitted on the motion conclusively establishes that defendant was a lessee, rather than the owner, of the premises, it does not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal when documentary evidence establishes a defense that disposes of the plaintiff's claims as a matter of law.

Johnson v. Chase Manhattan Bank USA · filed 2004-02-27(a)(1)

Pursuant to CPLR 3211(a)(1), a court may dismiss a complaint based on a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claims as a matter of law ( Leon v Martinez , 84 NY2d 83 [1994]; Bronxville Knolls, Inc. v Webster Town Center Partnership , 221 AD2d 248 [1st Dept 1995]; Talbi v ZCWK Assocs. , 179 AD2d 475 [1st Dept 1992]). Here, t he complaint must be dismissed as a matter of law because this action is specifically barred by the plain and unambiguous terms of the Arbitration Agreement entered into by the parties.

A document supports dismissal under CPLR 3211(a)(1) only if it conclusively establishes a defense as a matter of law.

Singh v. Queens Ledger Newspaper Group · filed 2003-12-22(a)(1)

While the attached report clearly did not prove the plaintiffs claim, neither did it prove that there were no factual issues outstanding with respect to that claim as a matter of law, which is what a document must accomplish for a CPLR 3211 (a) (1) motion to succeed (see Morris v Moms, 306 AD2d 449 [2003]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when the documents definitively dispose of the plaintiff's claim.

Kearins v. GRUBERG, McKAY & STONE · filed 2004-01-29(a)(1)

As the complaint in the instant malpractice action alleges, inter alia , that defendants failed to obtain marketable title, and adequate security to assure performance by Mr. Kearins, and that Mr. Stone released the deed without Ms. Kearins' consent nine days after the stipulation of settlement and judgment of divorce clearly provided for marketable title, then it cannot be said that these documents definitely dispose of plaintiff's claim. Therefore, dismissal under CPLR 3211(a)(1) is denied.

Section 3211(a)(1) permits dismissal of a specific performance claim when documentary evidence conclusively establishes that the lease was terminated.

Old Clinton Corp. v. 502 Old Country Road, LLC · filed 2004-03-01(a)(1)

In any event, since the defendants submitted documentary evidence conclusively establishing that the lease was terminated, the remedy of specific performance was unavailable (see CPLR 3211 [a] [1]; Baystone Equities v Gerel Corp., 305 AD2d 260 [2003]). Under these circumstances, the court should have dismissed the first cause of action insofar as asserted against 502 Old Country Road.

Section 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and definitively disposes of the claims.

Topel v. Reliastar Life Insurance · filed 2004-04-19(a)(1)

Pursuant to CPLR 3211 (a) (1), dismissal of a complaint is warranted where the documentary evidence resolves all factual issues as a matter of law and definitively disposes of the asserted claims (see Randazzo v Gerber Life Ins. Co., 3 AD3d 485 [2004]; Bank v Lake, 284 AD2d 355 [2001]; European Am. Bank v Miller, 265 AD2d 374 [1999]).

Documentary evidence must conclusively establish a defense to warrant dismissal under CPLR 3211(a)(1).

Kaminsky v. FSP Inc. · filed 2004-03-18(a)(1)

...the documentary evidence proffered by defendants failed to establish conclusively that plaintiffs breached provisions of the partnership agreement and have thus forfeited rights to payments of partnership distributions (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

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

Jorjill Holding Ltd. v. Grieco Associates, Inc. · filed 2004-04-12(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 Leon v Martinez, supra; Morris v Morris, supra; Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]).

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

Malarkey v. Piel · filed 2004-05-17(a)(1)

The Supreme Court properly dismissed the plaintiffs cause of action to recover damages for legal malpractice based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83 [1994]).

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.

Treeline Garden City Plaza v. UBS Warburg Real Estate Invs. · filed 2004-05-24(a)(1)

"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."

Under CPLR 3211(a)(1), allegations contradicted by documentary evidence are not presumed true or given every favorable inference.

Sterling Fifth Associates v. Carpentille Corp. · filed 2004-07-01(a)(1)

However, on a motion to dismiss pursuant to CPLR 3211 (a) (1), where allegations are contradicted by documentary evidence, they are not presumed to be true or ... granted every favorable inference inasmuch as “the interpretation of an unambiguous contract is a question of law for the court, and the provisions of the contract delineating the rights of the parties prevail over the allegations set forth in the complaint” (Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001]).

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

Heslin v. Metropolitan Life Insurance · filed 2004-07-01(a)(1)

We find that the documentary evidence submitted by defendant is insufficient to establish the defense as a matter of law, and that plaintiffs’ complaint, for pleading survival purposes, adequately alleges a General Business Law § 349 claim.

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

Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc. · filed 2004-08-05(a)(1)

The submissions here are of a type that “do not meet the CPLR 3211 (a) (1) requirement of conclusively establishing [the] defense as a matter of law” (IMO Indus, v Anderson Kill & Olick, 267 AD2d 10, 11 [1999]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents definitively dispose of the claim by resolving all factual issues as a matter of law.

Roth v. United Federation of Teachers · filed 2004-07-09(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 plaintiffs claim (see Bronxville Knolls v Webster Town Ctr., 221 AD2d 248 [1995]). ... In the instant motion, defendants have failed to demonstrate that the resolution upon which they rely and which they contend is a document disposes of all factual issues. Accordingly, the court denies the motion as asserted under said paragraph.

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

150 Broadway N.Y. Associates, L.P. v. Bodner · filed 2004-11-04(a)(1)

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

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

Wallach v. Hinckley · filed 2004-11-18(a)(1)

A motion to dismiss a complaint based upon documentary evidence may be granted where the documentary evidence submitted resolves all factual issues as a matter of law and definitively disposes of the plaintiffs claim (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Ozdemir v Caithness Corp., 285 AD2d 961, 963 [2001], lv denied 97 NY2d 605 [2001]).

Under CPLR 3211(a)(1), unambiguous contractual provisions can support dismissal when they conclusively refute the complaint’s allegations.

East Coast Petroleum Co. v. Bank of New York Trust Co. · filed 2004-10-14(a)(1)

All of plaintiffs’ challenges to the conclusiveness of defendants’ documentary evidence were contradicted by unambiguous contractual provisions, and were summarily rejected (CPLR 3211 [a] [1]; see Uribe v Merchants Bank of N.Y., 91 NY2d 336 [1998]).

Section 3211(a)(1) permits dismissal when documentary evidence flatly contradicts the allegations supporting a claim.

Ahmed v. Getty Petroleum Marketing, Inc. · filed 2004-11-08(a)(1)

In this action against a franchisor by a former franchisee, the Supreme Court properly granted the defendant’s motion to dismiss the complaint, in effect, pursuant to CPLR 3211 (a) (1) and (7). The allegations of the first cause of action, which ... were flatly contradicted by documentary evidence demonstrating that the plaintiff received from the defendant a document setting forth the required disclosures (see Meyer v Guinta, 262 AD2d 463 [1999]; Doria v Masucci, 230 AD2d 764 [1996]; Gertler v Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985]).

CPLR 3211(a)(1) permits dismissal when evidentiary material conclusively refutes an allegation essential to the complaint.

Sung Hwan Co. v. Rite Aid Corp. · filed 2004-11-30(a)(1)

We affirm nonetheless, because the evidentiary material before the IAS court, including the Korean court file and a 1995 ice cream sales agreement between defendant’s subsidiary and a Korean distributor, conclusively refuted any allegation that the Seoul District Court had a cognizable basis for exercise of personal jurisdiction over defendant. Dismissal of the complaint was warranted under CPLR 3211 (a) (1) and 5304 (a) (2).

CPLR 3211(a) permits dismissal when documentary evidence defeats the complaint and the plaintiff fails to oppose the motion.

Bridgeport Capital Services, Inc. v. Ruby Tuesday, Inc. · filed 2004-12-08(a)

In light of said documentary evidence and in view of plaintiffs’ failure to oppose defendant’s motion to, inter alia, vacate the default judgment and dismiss the complaint, in addition to vacating the default judgment, the Civil Court should also have granted the branch of defendant’s motion which sought dismissal of the complaint (see CPLR 3211 [a]; ... Leon v Martinez, 84 NY2d 83, 88 [1994]).

Documentary evidence that resolves all factual issues as a matter of law can warrant dismissal on a motion under § 3211.

Goldman v. Metropolitan Life Insurance · filed 2004-12-28(a)(7)

Where documentary evidence, however, resolves all factual issues as a matter of law, the dismissal of the complaint is warranted (see Topel v Reliastar Life Ins. Co., 6 AD3d 608 [2004]; Dougherty v William Penn Life Ins. Co. of N.Y., 3 AD3d 469 [2004], lv denied 2 NY3d 704 [2004]; Randazzo v Gerber Life Ins. Co., 3 AD3d 485 [2004], lv denied 2 NY3d 704 [2004]).

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

Pacella v. Whiteman Osterman & Hanna · filed 2005-01-18(a)(1)

The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action to recover damages for legal malpractice based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83 [1994]).

CPLR 3211(a) permits dismissal when documentary evidence conclusively disposes of the plaintiff’s claims.

Silvester v. Time-Warner, Inc. · filed 2005-01-25(a)

The documentary evidence, however, demonstrates conclusively that plaintiffs contracted away any rights they had to the subject recordings, without reservation, and, indeed, expressly conveyed, in each of the governing contracts entered into with defendants, the right to exploit the subject recordings by any method, including methods unknown at the time of contracting (see Greenfield v Philles Records, Inc., 98 NY2d 562 [2002]). These arm’s length contracts are entirely dispositive of plaintiffs’ various claims.

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

Levenherz v. Povinelli · filed 2005-01-31(a)(1)

A motion to dismiss based upon documentary evidence ... “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., supra at 326).

On a motion to dismiss, allegations flatly contradicted by documentary evidence receive no presumption of truth or favorable inference.

Taussig v. Clipper Group. L.P. · filed 2004-12-14(a)(1)

Moreover, where factual allegations or legal conclusions are flatly contradicted by documentary evidence, they are not presumed to be true, or even accorded favorable inference (Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001]).

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

CooperVision, Inc. v. Inter Integration Technologies, Inc. · filed 2005-02-02(a)(1)

Dismissal is warranted under paragraph (1) of subdivision (a) of CPLR 3211 “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.”

Under CPLR 3211 (a) (1), documentary evidence must conclusively establish grounds for dismissal.

Watts v. Champion Home Builders Co. · filed 2005-02-04(a)(1)

Dismissal is not warranted under CPLR 3211 (a) (1) because the documentary evidence submitted by defendants fails to establish conclusively that there was no agreement between defendants and plaintiffs with respect to the construction work or that defendants had no role in the performance of the construction work (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

McCue v. County of Westchester · filed 2005-05-31(a)(1)

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 plaintiffs claim (see Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]).

Section 3211(a)(1) does not permit dismissal based on a contract that fails to defeat the claim as a matter of law and raises a factual issue.

Condren, Walker & Co. v. Wolf · filed 2005-06-07(a)(1)

We reverse. It cannot be said that the 2001 agreement, on its face, establishes as a matter of law that plaintiff is not an intended third-party beneficiary of the purchaser’s assumption of the former noteholders’ liability (if any) for plaintiffs commissions.

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.

Quantum Maintenance Corp. v. Mercy College · filed 2005-06-15(a)(1)

Accordingly, for defendant to succeed on its motion to dismiss based on a defense founded upon documentary evidence, the . documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of plaintiffs claim.

CPLR 3211(a) requires liberal construction of the pleading and favorable inferences for the plaintiff; documentary evidence must conclusively resolve factual issues to support dismissal.

Aster Search Group v. OrthoNet New York IPA, Inc. · filed 2005-06-23(a)

Affording the pleading a liberal construction, accepting the facts alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference, and determining that the facts alleged fit within a cognizable legal theory, dismissal of the causes of action for breach of contract and account stated, pursuant to CPLR 3211 (a), was properly denied in this action on a personal services contract (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Defendant failed to submit documentary evidence to resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs claim (id. at 88).

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

Sheridan v. Town of Orangetown · filed 2005-08-01(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 Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Roth v Goldman, 254 AD2d 405 [1998]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint’s factual allegations and conclusively establishes a defense as a matter of law.

Washington Mutual Bank, F.A. v. SIB Mortgage Corp. · filed 2005-09-12(a)(1)

Therefore, liberally construing the plaintiffs complaint and according it the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the Supreme Court properly granted the defendant’s motion to dismiss the complaint since “the documentary evidence utterly refutes plaintiffs 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]; Levenherz v Povinelli, 14 AD3d 658, 659 [2005]).

Under CPLR 3211(a)(1), documentary evidence must conclusively dispose of the plaintiff’s claim to warrant dismissal.

Tuchten v. Palazzola · filed 2005-09-12(a)(1)

Notwithstanding defendants’ contention to the contrary, this document does not conclusively dispose of this action, particularly in view of the fact that the report was filed approximately five hours after the occurrence of the accident, and the keys to the vehicle that defendant alleges to have misplaced were found in the ignition of that vehicle at the site of the accident.

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

Samuel v. Time Warner, Inc. · filed 2005-10-24(a)(1)

Accordingly, TWCNYC has demonstrated its entitlement to dismissal of the Samuel complaint pursuant to CPLR 3211 (a) (1) and (7) based on the content of the notice, which is in compliance with FCC regulations. However, plaintiff Kimberly Brissenden has stated a claim for violation of General Business Law § 349 based on defendants’ installation practices, and the documentary evidence furnished by defendants does not “utterly refute” her allegations and conclusively establish a defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

Calabro v. General Insurance of America · filed 2005-11-07(a)(1)

Contrary to the defendant’s contention, the documentary evidence tendered in support of that branch of its cross motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint “failed to resolve all factual issues and conclusively dispose of the plaintiffs claims as a matter of law” (Wright v Evanston Ins. Co., 14 AD3d 505 [2005]; see CPLR 3211 [a] [1]). Accordingly, that branch of the motion was properly denied.

A party moving to dismiss under CPLR 3211 (a) (1) must show that documentary evidence conclusively refutes the complaint's allegations.

AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co. · filed 2005-11-17(a)(1)

In order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiff's (here third-party plaintiff's) allegations ( see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211 permits dismissal when documentary evidence conclusively establishes a defense to the claims as a matter of law.

Goldman v. Metropolitan Life Insurance · filed 2005-11-21(a)(1)

A CPLR 3211 dismissal “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 [1998] [citation and internal quotation marks omitted]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes the claim's lack of merit.

Penquin Tenants Corp. v. Ellenberg · filed 2006-01-05(a)(1)

Because the documentary evidence of the lease was not dispositive on plaintiffs lack of power to enact such rules, the dismissal motion, brought pursuant to CPLR 3211 (a) (1), was properly denied (see Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112 [1991]).

A motion to dismiss based on documentary evidence may be granted only when that evidence conclusively disposes of the claim.

L&S Motors, Inc. v. Broadview Networks, Inc. · filed 2006-01-31(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) can be granted only if the movant presents documentary evidence that will conclusively dispose of the claim (see Roth v Goldman, 254 AD2d 405 [1998]; Fischbach & Moore v Howell Co., 240 AD2d 157 [1997]).

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

Solon v. Tormey · filed 2006-02-03(a)(1)

Supreme Court erred in denying that part of the motion of defendant pursuant to CPLR 3211 (a) (1) seeking dismissal of the first amended complaint against him based on documentary evidence.

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

Zito v. Fischbein Badillo Wagner Harding · filed 2006-02-06(a)(1)

Moreover, dismissal under CPLR 3211 (a) (1) is proper where a movant tenders documentary evidence which, as a matter of law, conclusively disposes of plaintiffs claim (Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]).

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 claims.

Saxony Ice Co. v. Ultimate Energy Restaurant Corp. · filed 2006-03-07(a)(1)

To the extent that the motion was 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 claims (cf. Berardino v Ochlan, 2 AD3d 556, 557 [2003]; Prudential Wykagyl/Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]; Teitler v Pollack & Sons, 288 AD2d 302 [2001]).

CPLR 3211(a)(1) permits dismissal when documentary evidence refutes the plaintiff's claim.

Sheriff's Silver Star Ass'n v. County of Oswego · filed 2006-03-17(a)(1)

We conclude that defendant established its entitlement to dismissal of the causes of action for breach of contract based on a defense founded upon documentary evidence (see CPLR 3211 [a] [1]). None of the contractual obligations alleged by plaintiffs is set forth in the CBA, the only contractual document in the record, and thus any cause of action for breach of contract is refuted by documentary evidence, namely, the CBA.

Section 3211 permits dismissal based on documentary evidence only when the evidence conclusively establishes a defense and permits dismissal as time-barred only when the limitations period has expired.

Union Turnpike Associates, LLC v. Getty Realty Corp. · filed 2006-03-28(a)(1), (a)(5)

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (1) and (5) to dismiss the complaint, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff. ... The Supreme Court erred in dismissing the complaint as time-barred. ... Since this action was commenced within six years of the first payment, it was timely interposed (see State of New York v Speonk Fuel, supra; State of New York v Stewart’s Ice Cream Co., supra). ... The documentary evidence submitted by the defendant, which included the parties’ lease, did not conclusively establish that the plaintiff was responsible for maintaining and repairing the UST system.

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

Barrett v. Toroyan · filed 2006-04-18(a)(1)

However, to the extent that counts I and II allege that defendants diverted an opportunity from Delma Associates to defendant Delma Associates II, LLC, they were properly dismissed based on documentary evidence (CPLR 3211 [a] [1]).

Section 3211(a)(1) permits dismissal when a defense is founded on documentary evidence.

Largo Real Estate Advisors, Inc. v. Tzetzo & Tzetzo, PLLC · filed 2006-04-28(a)(1)

Supreme Court properly denied that part of defendants’ motion seeking dismissal of the first and third causes of action, for breach of contract, based upon a defense “founded upon documentary evidence” (CPLR 3211 [a] [1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes a contractual entitlement that defeats the claims.

Lange v. Kooper · filed 2006-04-06(a)(1)

The action was properly dismissed upon documentary evidence establishing that the grantor, as assignee of his former employer’s right, title and interest in the life insurance policy constituting the only significant asset of the subject trust, was, upon termination of his employment, contractually entitled to the policy’s cash surrender proceeds in an amount equal to the aggregate of the premiums paid by the employer.

CPLR 3211(a)(1) requires documentary evidence to resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim before dismissal.

Del Pozo v. Impressive Homes, Inc. · filed 2006-05-09(a)(1)

Even assuming that the mortgage contingency clause was unambiguous (see e.g. Ting v Dean, 156 AD2d 358 [1989]), in order for a complaint to be dismissed pursuant to CPLR 3211 (a) (1), the evidence submitted must “resolve[ ] all factual issues as a matter of law, and conclusively dispose of the plaintiffs claim” (Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]; see also Allstate Ins. Co. v Raguzin, 12 AD3d 468 [2004]; Tougher Indus. v Northern Westchester Joint Water Works, 304 AD2d 822 [2003]).

CPLR 3211(a)(1) permits dismissal when documentary evidence and undisputed facts negate a claim or conclusively establish a defense.

Zanett Lombardier, Ltd. v. Maslow · filed 2006-05-30(a)(1)

Dismissal is warranted under CPLR 3211 (a) (1) where documentary evidence and undisputed facts negate or dispose of claims in the complaint or conclusively establish a defense (see Silvester v Time Warner, 1 Misc 3d 250, 255 [2003]), affd 14 AD3d 430 [2005]).

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

Casamassima v. Casamassima · filed 2006-06-20(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”

Section 3211(a)(5) permits dismissal of a cause of action barred by collateral estoppel based on a prior arbitration award.

Martin v. Geico Direct Insurance · filed 2006-07-11(a)(5)

Contrary to the plaintiff’s contention, the Supreme Court properly denied her motion, in effect, for summary judgment and granted the defendant’s cross motion to dismiss the action pursuant to CPLR 3211 (a) (5) on the ground that it was barred by a prior arbitration award.

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.

M. Fund, Inc. v. Carter · filed 2006-07-18(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”

CPLR 3211(a)(5) permits dismissal based on a release only when the release's scope is established as a matter of law without unresolved factual issues.

Maxwell Partners, L.L.C. v. Building Studio, LLP · filed 2006-08-24(a)(5)

Therefore, the court erred in granting TBS’s motion to dismiss the complaint upon finding, as a matter of law, that the release was a general one, without limiting language.

Section 3211(a)(1) permits a defendant to seek dismissal of a complaint based on documentary evidence.

Kojovic v. Goldman · filed 2006-10-19(a)(1)

Accordingly, the order of the Supreme Court, New York County (Joan B. Lobis, J.), entered December 5, 2005, which denied defendant’s motion to dismiss the complaint on documentary evidence, should be reversed, on the law, without costs or disbursements, and the motion granted.

A party seeking dismissal under CPLR 3211(a)(1) must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim.

Sullivan v. State · filed 2006-11-08(a)(1) and (a)(5)

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” (Nevin v Laclede Professional Prods., 273 AD2d 453 [2000]).

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

Trataros Construction, Inc. v. New York City Housing Authority · filed 2006-11-08(a)(1)

A motion to dismiss a cause of action on the ground that it is barred by documentary evidence pursuant to CPLR 3211 (a) (1) may be appropriately granted “where the documentary evidence utterly refutes plaintiff’s factual allegations,” and conclusively establishes a defense to the asserted claim as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005]; Klein v Gutman, 12 AD3d 417 [2004]).

Section 3211(a)(1) allows dismissal when documentary evidence conclusively establishes a defense, while section 3211(a)(7) allows dismissal when the complaint fails to state a viable cause of action.

Wolfe v. Long Island Power Authority · filed 2006-11-14(a)(1) and (a)(7)

Contrary to IK Trust’s contention, we cannot conclude, as a matter of law, that the terms of the subject lease conclusively establish a defense to the allegations made in the third-party complaint (see CPLR 3211 [a] [1]; cf. Leon v Martinez, 84 NY2d 83, 88 [1994]; Fast Track Funding Corp. v Perrone, 19 AD3d 362 [2005]). ... Construing the third-party complaint liberally and affording Levine the benefit of every possible favorable inference, we conclude that it states a viable cause of action (see CPLR 3211 [a] [7]; Leon v Martinez, supra; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Goldfarb v Schwartz, 26 AD3d 462 [2006]).

C.P.L.R. § 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense to the asserted claims as a matter of law.

Schiavetti v. A & L, Inc. · filed 2006-11-17(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’ ” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]).

CPLR 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; under CPLR 3211(a)(7), the pleading must be evaluated to determine whether the plaintiff has a cause of action.

Martin v. New York Hospital Medical Center · filed 2006-11-21(a)(1), (a)(7)

“ ‘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’ ” ... In this regard, “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, supra at 88).

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

Sixty Sutton Corp. v. Illinois Union Insurance · filed 2006-11-30(a)(1)

On the merits, the documentary evidence conclusively established that Tower is not insured under the Utica policy (CPLR 3211 [a] [1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes that the claim cannot proceed.

DeLeonardis v. County of Westchester · filed 2006-12-12(a)(1)

The County moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) on the ground that documentary evidence established that the dismissal of the complaint was required. ... The documentary evidence clearly demonstrated that the parties attempted to enter into an agreement in excess of the authority conferred by Local Law 31-2001. ... Under these circumstances, the landlord did not establish the existence a binding contract for the terms it sought to enforce (see 10 McQuillin, Municipal Corporations § 29.02 [3d ed]; City of Zanesville, Ohio v Mohawk Data Sciences Corp., 97 AD2d 64 [1983]; Paz v Singer Co., 151 AD2d 234 [1989]).

Subsection (a)(1) permits dismissal only when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

Williams v. Williams · filed 2007-01-16(a)(1)

Under CPLR 3211 (a) (1), dismissal “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs 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]).

Section 3211(a)(1) permits dismissal when documentary evidence contradicts a plaintiff's allegation and the plaintiff offers no evidence substantiating it.

Hicksville Dry Cleaners, Inc. v. Stanley Fastening Systems, L.P. · filed 2007-02-08(a)(1)

Plaintiffs allegation that it purchased the allegedly defective product from defendant is flatly contradicted by defendant’s sales records, and, absent any evidence in plaintiffs opposition tending to substantiate such allegation, the cause of action for breach of contract was properly dismissed (CPLR 3211 [a] [1]; see Mark Hampton, Inc. v Bergreen, 173 AD2d 220 [1991], lv denied 80 NY2d 788 [1992]).

CPLR 3211(a)(1) permits dismissal based on a defense founded on documentary evidence, and the moving party must establish entitlement to dismissal on that basis.

Widewaters Property Development Co. v. Katz · filed 2007-03-16(a)(1)

We thus conclude on the record before us that defendants did not establish their entitlement to dismissal of those paragraphs based on a defense founded on documentary evidence, pursuant to CPLR 3211 (a) (1).

Section 3211(a)(1) does not support dismissal when documentary evidence cannot conclusively determine the relevant issue.

Sprung v. Command Security Corp. · filed 2007-03-29(a)(1)

With respect to the complaint, since the contract does not specify the services to be furnished, it cannot be conclusively determined, on the basis of the documentary evidence (CPLR 3211 [a] [1]) whether the company had “entirely displaced” or “comprehensively absorbed” the owner’s common-law duty, if any, to secure the premises against the type of crime that resulted in the deaths of plaintiff’s decedents (see Rahim v Sottile Sec. Co., 32 AD3d 77, 80, 82 [2006], citing Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 141 [2002]).

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.

Ruby Falls, Inc. v. Ruby Falls Partners, LLC · filed 2007-04-10(a)(1)

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Williams v Williams, 36 AD3d 693 [2007]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006])” (Mendelovitz v Cohen, 37 AD3d 670, 670-671 [2007]).

Section 3211(a)(5) permits dismissal when a prior judgment bars the claim.

Eliasof v. Metropolitan Life Insurance · filed 2007-04-24(a)(5)

As the consent decree in this instance encompasses issues of alleged sexual harassment in MetLife’s workplace, including MetLife’s antiharassment policies, training, and remedial procedures, the plaintiffs participation in the settlement of the class action bars her from pursuing her claims in the Supreme Court, which are duplicative.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively disposes of the claims.

Jazilek v. Abart Holdings LLC · filed 2007-06-05(a)(1)

The complaint should be dismissed pursuant to CPLR 3211 (a) (1). The parties’ duly negotiated, so-ordered stipulation constitutes a binding agreement, the sole source of plaintiff’s tenancy rights, and documentary evidence dispositive of plaintiffs claims. That agreement permitted him tenancy at the pleasure of the landlord, conferred no rights other than those stated, and established no status or protection under the Rent Stabilization Law. Thus, it provides no basis for plaintiffs claims (see Kent v Bedford Apts. Co., 237 AD2d 140 [1997]).

Section 3211(a)(1) permits dismissal when documentary evidence refutes the plaintiff's allegations, and paragraph (a)(7) permits dismissal when the complaint fails to state a claim after liberal construction.

Berry v. Tilley · filed 2007-06-19(a)(1) and (7)

The documentary evidence refutes the plaintiffs factual allegation that there was a meeting of the minds with respect to all of the essential terms of the sale (see Prudential Wykagyl/ Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]; Hampton Country Real Estate v Rizzo, 305 AD2d 458 [2003]). In addition, as to the Tilleys, even taking the facts alleged by the plaintiff as true, and giving the pleadings a liberal construction and according the plaintiff the benefit of every possible favorable inference, the plaintiff did not allege a contractual relationship with the Tilleys, express or implied (see Fischer v RWSP Realty, LLC, 19 AD3d 540 [2005]; Re/Max Homes & Estates v Leist, 308 AD2d 439 [2003]).

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 plaintiff's claim.

Fleming v. Kamden Properties, LLC · filed 2007-06-26(a)(1)

Where, as here, defendants move pursuant to CPLR 3211 (a) (1) to dismiss an action asserting the existence of a defense founded upon documentary evidence, the documentary evidence “ ‘must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim’ ” (Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003], quoting Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Museum Trading Co. v Bantry, 281 AD2d 524 [2001]).

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

Yang v. Shew-Foo Chin · filed 2007-07-05(a)(1)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 29, 2006, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), unanimously reversed, on the law, with costs, the motion granted, and the complaint dismissed. ... The buyer commenced this action for specific performance, and the seller moved to dismiss the complaint on the ground of a complete defense based on the documentary evidence. ... By the clear and unambiguous terms of the agreement, seller had an “absolute and unconditional right of cancellation,” and therefore is entitled to dismissal of the action.

Section 3211(a)(1) and (7) permit dismissal based on documentary evidence or for failure to state a cause of action.

RWSP Realty, LLC v. Agusta · filed 2007-07-17(a)(1) and (7)

The defendants moved, inter alia, to dismiss the complaint on the ground that, based upon documentary evidence, the complaint failed to state a cause of action. ... Accordingly, the Supreme Court erred in denying those branches of the defendants’ motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

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

Foster v. Kovner · filed 2007-07-19(a)(1)

“[u]nder 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” (Leon v Martinez, 84 NY2d 83, 88 [1994]).

A motion to dismiss based on documentary evidence may be granted when the evidence resolves all factual issues as a matter of law and conclusively disposes of the cause of action.

Weinstein v. Hotel Acquisitions Corp. · filed 2007-09-11(a)(1)

For a court to grant a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence forming the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of the cause of action.

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense as a matter of law, and CPLR 3211(a)(7) requires the court to accept pleaded facts as true and give the plaintiff every favorable inference.

Leibowitz v. Impressive Homes, Inc. · filed 2007-09-18(a)(1) and (a)(7)

Accordingly, the court was required to accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Dismissal pursuant to CPLR 3211 (a) (1) based upon documentary evidence is warranted “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (id. at 88).

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

Gawez v. Inter-Connection Electric, Inc. · filed 2007-10-23(a)(1)

The contractor defendants submitted the contract between Luna Park Housing Corporation and the defendant Inter-Connection Electric, Inc., thereby conclusively establishing that Luna Park Housing Corporation is a private entity and therefore not subject to prevailing wage guidelines (see Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847 [2007]).

Section 3211(a)(1) permits dismissal based on compelling and unequivocal documentary evidence that conclusively controverts the claim.

Blank Rome LLP v. Parrish · filed 2007-10-30(a)(1)

Absent compelling and unequivocal documentary evidence delineating these issues and others, it was error to dismiss the counterclaims under CPLR 3211 (a) (1) (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

Beekman Regent Condominium Ass'n v. Greater New York Mutual Insurance · filed 2007-11-08(a)(1)

Defendant insurer conclusively established a defense to the asserted claims as a matter of law by submitting documentary evidence (see CPLR 3211 [a] [1]) that the policy contains a two-year limitations period and that plaintiffs’ action was commenced after the expiration of that period (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820, 823 [1985]).

A complaint may be dismissed when a release or other defense is established as a matter of law.

TVGA Engineering, Surveying, P.C. v. Gallick · filed 2007-11-09(a)(1), (5)

Thus, we agree with plaintiff that, to the extent defendants rely on the term “legal representatives,” they have failed to establish as a matter of law that the action against them is barred by the release (see CPLR 3211 [a] [1], [5]).

Section 3211(a)(7) requires courts to accept pleaded facts as true and determine whether they fit a cognizable legal theory, while section 3211(a)(1) permits dismissal only when documentary evidence conclusively refutes the allegations and establishes a defense as a matter of law.

Porcelli v. Key Food Stores Co-Operative, Inc. · filed 2007-10-30(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020 [2007]; Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805 [2007]; Montes Corp. v Charles Freihofer Baking Co., Inc., 17 AD3d 330 [2005]). ... Furthermore, a motion to dismiss a complaint on the ground that it is barred by documentary evidence pursuant to CPLR 3211 (a) (1) may be appropriately granted only “where the documentary evidence utterly refutes plaintiffs factual allegations,” and conclusively establishes a defense to the asserted claims as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon v Martinez, 84 NY2d at 88; Long v Allen AME Transp. Corp., 43 AD3d 1114 [2007]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005]).

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.

Weiss v. Waterhouse · filed 2007-11-20(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” (Teitler v Pollack & Sons, 288 AD2d 302, 302 [2001]; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Klein v Gutman, 12 AD3d 417, 418 [2004]).

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.

Matovcik v. Times Beacon Record Newspapers · filed 2007-12-11(a)(1)

Where, as here, the defendants move pursuant to CPLR 3211 (a) (1) to dismiss an action asserting the existence of a defense founded upon documentary evidence, the documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see Fleming v Kamden Props., LLC, 41 AD3d 781 [2007]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006]; M. Fund, Inc. v Carter, 31 AD3d 620, 621 [2006]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes that the plaintiff lacks privity of contract with the defendant.

Arker Companies v. New York State Urban Development Corp. · filed 2008-01-22(a)(1)

The Supreme Court also properly granted that branch of the motion of the defendant New York State Dormitory Authority which was to dismiss the complaint insofar as asserted against it since the documentary evidence conclusively established that there was no privity of contract between it and the plaintiffs (see CPLR 3211 [a] [1]; M. Fund, Inc. v Carter, 31 AB3d 620, 621 [2006]; Berardino v Ochlan, 2 AD3d 556 [2003]; Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]).

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

Rubinstein v. Salomon · filed 2007-12-04(a)(1)

Accordingly, the Supreme Court should have denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (2), and (7).

On a motion to dismiss under CPLR 3211(a)(1), documentary evidence that flatly contradicts the plaintiff’s allegations can support dismissal.

Gibbs v. Moore · filed 2007-12-11(a)(1)

The plaintiffs allegations in his complaint, even together with those in his affidavit, to the effect that it was the parties’ intent that the cancellation of the promissory note would not take effect until after the defendant had fully complied with the ... terms of the separation agreement, are flatly contradicted by the documentary evidence.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the complaint’s allegations.

Dominski v. Frank Williams & Son, LLC · filed 2007-12-21(a)(1)

Defendants submitted documentary evidence conclusively refuting the allegations in the amended complaint that the lease agreement and the order of eviction to which plaintiff stipulated resulted from their alleged coercion or misrepresentation of a-material fact, and thus “dismissal pursuant to CPLR 3211 (a) (1) is warranted” (Berardino v Ochlan, 2 AD3d 556, 557 [2003]).

Section 3211(a)(1) permits dismissal based on documentary evidence when an unambiguous lease defeats the claimed right to use the premises solely for storage.

Glenball, Ltd. v. TLY Coney, LLC · filed 2008-02-05(a)(1)

The Supreme Court, however, correctly determined that the lease unambiguously required the plaintiff to operate an amusement park business at the premises, which the plaintiff has failed to do. Therefore, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the second cause of action based upon a defense founded on documentary evidence.

CPLR 3211(a)(1) permits dismissal of a fraud claim when documentary evidence conclusively defeats the alleged basis for reliance.

McMorrow v. Dime Savings Bank of Williamsburgh · filed 2008-02-19(a)(1)

Applying the instant principles to the case at bar, the Supreme Court properly granted that branch of SG & B’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it.

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.

Farber v. Breslin · filed 2008-01-29(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Williams v Williams, 36 AD3d 693, 695 [2007]).

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

DelaCruz v. 236-1 Development Associates (Green), LP · filed 2008-02-19(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs 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]; see Long v Allen AME Transp. Corp., 43 AD3d 1114 [2007]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005]). Here, the incomplete copy of the “Order to Abate Nuisance” from the New York City Department of Health and Mental Hygiene submitted by the defendants failed to demonstrate that no lead-based paint was found on a “friction surface” (see Administrative Code of City of New York § 27-2056.2 [4]; § 27-2056.4). Accordingly, the Supreme Court properly denied the defendants’ motion.

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

49 East Maple Ave., Inc. v. Loniewski · filed 2008-04-01(a)(1)

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

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

Maurice W. Pomfrey & Associates., Ltd. v. Hancock & Estabrook, LLP · filed 2008-04-25(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” (Leon v Martinez, 84 NY2d 83, 88 [1994]), and here, the employment agreement does not conclusively establish a defense to the first cause of action as a matter of law.

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.

Holman v. City of New York · filed 2008-03-13(a)(1)

In addition, in order to prevail on a dismissal motion 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 plaintiffs claim.

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

Franco v. Piccilo · filed 2008-03-14(a)(1)

We conclude that the court properly denied defendant’s motion inasmuch as the documentary evidence submitted in support thereof did not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

HSBC Bank USA, N.A. v. Decaudin · filed 2008-03-18(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted only where “the documentary evidence that forms the basis of the defense [is] such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claims” (Saxony Ice Co., Div. of Springfield Ice Co., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]; see Museum Trading Co. v Bantry, 281 AD2d 524, 525 [2001]). ... Since the documentary evidence does not establish the absence of ratification, the motion was properly denied.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively refutes the plaintiff’s allegations.

Edme v. Tanenbaum · filed 2008-04-01(a)(1)

Contrary to the contention of the defendant Richard Tanenbaum, the documentary evidence that he submitted in support of his motion did not conclusively refute the plaintiff s allegations of legal malpractice against him so as to warrant dismissal of the action pursuant to CPLR 3211 (a) (1) insofar as asserted against him.

Under CPLR 3211(a)(1), documentary evidence that conclusively establishes a defense supports dismissal of the affected claims.

Selinger Enterprises, Inc. v. Cassuto · filed 2008-04-08(a)(1)

The agreement itself is documentary evidence that conclusively establishes a defense to the contract and quasi contract causes of action (see CPLR 3211 [a] [1]; Sargent v New York Daily News, L.P., 42 AD3d 491, 493 [2007]; cf. Sullivan v State of New York, 34 AD3d 443, 445 [2006]; Nevin v Laclede Professional Prods., 273 AD2d 453 [2000]).

Under CPLR 3211(a)(1), documentary evidence can support dismissal when it utterly refutes allegations and conclusively establishes a defense as a matter of law.

Owens Road Associates, LLC v. Town Board of Town of Goshen · filed 2008-04-15(a)(1)

The documentary evidence submitted by the respondents “utterly refute[d]” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see McMorrow v Dime Sav. Bank of Williamshurgh, 48 AD3d 646 [2008]) several of the petitioners’ allegations regarding purported deficiencies in the procedures the respondents followed prior to making the challenged determinations, conclusively establishing the defenses to those allegations as a matter of law (see McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646 [2008], citing, inter alia, Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(5) permits dismissal of a personal injury complaint based on an unambiguous release of liability for ordinary negligence.

Brookner v. New York Roadrunners Club, Inc. · filed 2008-05-20(a)(5)

In light of this waiver and release, ...the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) insofar as asserted against the defendants New York Road Runners Club, Inc. (hereinafter NYRRC) and City of New York (see Fazzinga v Westchester Track Club, 48 AD3d 410 [2008]; see also Booth v 3669 Delaware, 92 NY2d 934 [1998]; Lee v Boro Realty, LLC, 39 AD3d 715, 716 [2007]; Koster v Ketchum Communications, 204 AD2d 280 [1994]).

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

Faden v. Satterlee Stephens Burke & Burke, LLP · filed 2008-06-17(a)(1)

The defendants were entitled to dismissal of the complaint based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Malarkey v Piel, 7 AD3d 681 [2004]).

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

Winick Realty Group LLC v. Austin & Associates · filed 2008-05-01(a)(1)

The documentary evidence submitted by Austin does not conclusively establish a defense to the asserted claims as a matter of law (see Leon v Martinez, 84 NY2d 83 [1994]).

Section 3211(a)(1) does not permit dismissal based on an ambiguous document.

R.I. Island House, LLC v. North Town Phase II Houses, Inc. · filed 2008-05-20(a)(1)

Since a dismissal pursuant to CPLR 3211 (a) (1) cannot rest on an ambiguous document (see Mendelovitz v Cohen, 37 AD3d 670, 671 [2007]), the Island/Westview defendants’ argument in this regard must be rejected at this stage of the litigation.

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

Logatto v. City of New York · filed 2008-05-27(a)(1)

Dismissal under CPLR 3211 (a) (1) is warranted where the “documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Sheridan v Town of Orangetown, 21 AD3d 365, 365-366 [2005]; Fast Track Funding Corp. v Perrone, 19 AD3d 362 [2005]).

CPLR 3211(a)(1) and (7) permit dismissal of an implied-in-fact contract claim when documentary evidence unequivocally shows no meeting of minds and an intent to use a written agreement.

DG & A Management Services, LLC v. Securities Industry Ass'n Compliance · filed 2008-06-05(a)(1) and (7)

In this case, documentary evidence in the record unequivocally demonstrates that plaintiff and the Division never reached a meeting of minds constituting an agreement and, more importantly, if they had, it would have been memorialized by a written agreement. Accordingly, the first cause of action alleging an implied-in-fact contract was properly dismissed pursuant to CPLR 3211 (a) (1) and (7) (see Jordan Panel Sys. Corp. v Turner Constr. Co., 45 AD3d 165 [2007]).

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.

Turkat v. Lalezarian Developers, Inc. · filed 2008-06-10(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence that forms the basis of the defense is such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claims (see Saxony Ice Co., Div. of Springfield Ice Co., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]), which is not the case here.

CPLR 3211(a)(1) permits dismissal when documentary evidence refutes a breach of contract claim.

Sempra Energy Trading Corp. v. BP Products North America, Inc. · filed 2008-06-17(a)(1)

The complaint was properly dismissed, where plaintiff’s breach of contract claim was refuted by the documentary evidence, namely the predischarge inspection report showing that the delivered fuel oil was in compliance with contract specifications (see Leon v Martinez, 84 NY2d 83, 88 [1994]; 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 5 [2004]).

CPLR 3211(a)(5) permits dismissal of a complaint barred by a valid release.

Lodhi v. Stewart's Shops Corp. · filed 2008-06-19(a)(5)

Under the circumstances, Supreme Court properly granted defendant’s motion to dismiss the complaint as barred by the release (see CPLR 3211 [a] [5]).

Section 3211(a)(1) permits dismissal of a contract claim when the governing written document defeats the rights the plaintiff claims.

Altman v. New York Board of Trade, Inc. · filed 2008-06-24(a)(1)

Plaintiffs’ causes of action for breach of contract (eighth through eleventh) were properly dismissed pursuant to CPLR 3211 (a) (1). The only written document governing plaintiffs’ rights and obligations as permit holders is the NYBOT By-Laws, which expressly state in section 101 (b) that “Permit Holders . . . shall not constitute ‘members’ within the meaning of the N[-]PCL and . . . will not have any voting rights in the Exchange or any rights to receive any distributions of cash, securities or other property, whether on dissolution, liquidation, merger, consolidation or otherwise.”

A movant seeking dismissal under CPLR 3211(a)(5) based on a release must show that the release was intended to cover the action or claim.

Choudhry v. Five Star Contracting Companies · filed 2008-06-24(a)(5)

In order to be entitled to dismissal of an action based upon a release, the movant must show that the release was intended to cover the subject action or claim.

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

Snyder v. Voris, Martini & Moore, LLC · filed 2008-06-24(a)(1)

To succeed on a motion pursuant to CPLR 3211 (a) (1), the documentary evidence must conclusively establish a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Berardino v Ochlan, 2 AD3d 556, 557 [2003]; Teitler v Pollack 6 Sons, 288 AD2d 302 [2001]).

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

New York City Economic Development Corp. v. Corn Exchange, LLC · filed 2008-08-19(a)(1)

Under CPLR 3211 (a) (1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law.

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

30th Place Holdings, LLC v. 474431 Associates · filed 2008-09-09(a)(1)

Since it was undisputed that the sale of the subject premises was final in May 2006, the documentary evidence conclusively established a defense to the plaintiff buyer’s claims to recover damages under the first and second causes of action, which were to recover for overpayment of rent and to recover security deposit interest, respectively, pursuant to the net lease (see CPLR 3211 [a]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Selinger Enters., Inc. v Cassuto, 50 AD3d 766 [2008]; Sargent v New York Daily News, L.P., 42 AD3d 491 [2007]).

Section 3211(a)(1) permits dismissal when documentary evidence establishes that a relationship necessary for liability does not exist.

Smith-Hoy v. AMC Property Evaluations, Inc. · filed 2008-06-24(a)(1)

The Supreme Court also properly granted HMA’s motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1). Absent proof of a principal/agency relationship or proof that a franchisor exercised a high degree of control over its franchisee, there is no basis for holding a franchisor responsible for its franchisee’s misconduct (see Friedler v Palyompis, 12 AD3d 637, 638 [2004]; Matter of Sperte v Shaffer, 111 AD2d 856, 858 [1985]). HMA presented documentary evidence that no such relationship existed, and that AMC was a mere franchisee over which HMA lacked the requisite supervision, direction, or control (see Terrano v Fine, 17 AD3d 449 [2005]; Tobacco v North Babylon Fire Dept., 251 AD2d 398, 399-400 [1998]).

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

Nwauwa v. Mamos · filed 2008-07-29(a)(1)

Upon renewal, that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) should have been denied since, under the circumstances, the documentary evidence relied on by the defendants did not “utterly refute[ ]” the plaintiffs’s “factual allegations” and “conclusively establish[ ] a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Kiss Nail Prods. v CGU Ins. Co., 299 AD2d 524 [2002]).

Under CPLR 3211(a)(1), documentary evidence must resolve material factual issues as a matter of law to support dismissal.

McPherson v. Husbands · filed 2008-09-09(a)(1)

Absent documentary proof of the plaintiffs’ agreement to these provisions limiting liability, and in light of the denial by the plaintiff Wayne McPherson that the plaintiffs received the invoice or agreed to the provisions limiting liability, the documentary evidence forming the basis of this defense failed to resolve the material factual issues as a matter of law, as required in order to prevail on a motion pursuant to CPLR 3211 (a) (1) (see Saxony Ice Co., Div. of Springfield Ice Co., Inc. v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]; New York City Hous. Auth. v Fosroc Inc., 226 AD2d 103, 104 [1996]; cf. Rector v Calamus Group, Inc., 17 AD3d 960 [2005]; Peluso v Tauscher Cronacher Professional Engrs., 270 AD2d 325 [2000]).

A motion to dismiss under CPLR 3211(a)(1) may be granted only when documentary evidence conclusively establishes a defense by refuting the plaintiff’s factual allegations.

Jesmer v. Retail Magic, Inc. · filed 2008-09-09(a)(1)

A CPLR 3211 (a) (1) motion “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs 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]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense.

Town of Riverhead v. Silverman · filed 2008-09-30(a)(1)

Since the documentary evidence submitted by the Association conclusively established that it owned the dock, and that the appellants had no ownership interest therein other than as members of the Association (insofar as they are members thereof), the Supreme Court properly granted the Association’s motion to dismiss the cross claim asserted against it pursuant to CPLR 3211 (a) (1).

A contractual forum selection clause may serve as documentary evidence supporting dismissal under CPLR 3211(a)(1).

Lischinskaya v. Carnival Corp. · filed 2008-10-14(a)(1)

As a term of the contract between the parties, however, a contractual forum selection clause is documentary evidence (see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452 [2006]; Holiday Mgt. Assoc. v New York Inst, of Tech., 149 AD2d 462, 465 [1989]; Siegel, NY Prac § 259 [4th ed]; see also 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1 [2004]) that may provide a proper basis for dismissal pursuant to CPLR 3211 (a) (1) (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242 [2006]).

Under CPLR 3211(a)(7), evidentiary material can establish whether a plaintiff has a cause of action; under (a)(1), documentary evidence must conclusively resolve factual issues and dispose of the claim.

Ruffino v. New York City Transit Authority · filed 2008-10-21(a)(1), (a)(7)

When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one. 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 plaintiffs claim” (Morris v Morris, 306 AD2d 449, 451 [2003] [emphasis added; citations and internal quotation marks omitted]). Applying the foregoing standards to the instant case, Sterling’s motion to dismiss the plaintiff’s complaint and all cross claims insofar as asserted against it should have been granted.

On a motion to dismiss under CPLR 3211(a)(1), the court interprets an unambiguous contract as a matter of law, and its terms prevail over contrary allegations in the complaint.

First American Commercial Bancorp, Inc. v. Saatchi & Saatchi Rowland, Inc. · filed 2008-10-03(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1), “[t]he interpretation of an unambiguous contract is a question of law for the court, and the provisions of a contract addressing the rights of the parties will prevail over the allegations in a complaint” (Taussig v Clipper Group, L.P., 13 AD3d 166, 167 [2004], lv denied 4 NY3d 707 [2005]).

On a CPLR 3211 motion, an allegation directly contradicted by the terms of a contract need not be presumed true.

Worth Construction Co. v. TRC Engineers, Inc. · filed 2008-10-16(a)(1)

Plaintiffs allegation that defendants breached the contract by failing to deliver the Waterside site by March 1, 2003 is directly contradicted by the terms of the subcontract, and thus the allegation cannot be presumed to be true (Tectrade Intl. v Fertilizer Dev. & Inv., 258 AD2d 349 [1999], lv denied 94 NY2d 751 [1999]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff’s allegations and conclusively establishes a defense as a matter of law; an affidavit is not documentary evidence.

Martinez v. La Colonia Restaurant · filed 2008-10-21(a)(1)

The affidavit of the defendant Seerojini Sukhnanan does not constitute documentary evidence (see Fleming v Kamden Props., LLC, 41 AD3d 781, 782 [2007]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003] ).

CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the complaint’s factual allegations and conclusively establishes a defense as a matter of law.

Zeld Associates, Inc. v. Marcario · filed 2008-12-09(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where documentary evidence utterly refutes the complaint’s factual allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; 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 and resolves every factual issue.

Weston v. Cornell University · filed 2008-11-26(a)(1)

Thus, the documentary evidence upon which defendant relies does not resolve every factual issue as to plaintiffs claim for breach of contract and its motion to dismiss should not have been granted (see e.g. Mendelovitz v Cohen, 37 AD3d at 671).

Under CPLR 3211(a)(1), documentary evidence supports dismissal when it conclusively disposes of the claim.

GuideOne Specialty Insurance v. Admiral Insurance · filed 2008-12-09(a)(1)

Accordingly, the Supreme Court should have granted the appellant’s motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7).

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

Morales v. 78 4th Avenue Corp. · filed 2008-12-16(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs 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]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]).

A party seeking dismissal under CPLR 3211(a)(1) must submit documentary evidence that resolves all factual issues and conclusively disposes of the claim.

Mazur Bros. Realty v. State · filed 2009-02-03(a)(1)

A party seeking dismissal on the ground that its defense is founded upon documentary evidence pursuant to 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 [2000]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) permits dismissal when documentary evidence establishes that the defendant performed the disputed work as a corporate employee.

Wiernik v. Kurth · filed 2009-02-10(a)(1)

Contrary to the plaintiffs’ contentions, the documentary evidence submitted in support of the defendants’ motion, consisting, inter alia, of Kurth’s affidavit and the appellant’s W-2 forms, was sufficient to demonstrate that the appellant was employed by the Office as an office manager and that any work she performed concerning the project was pursuant to that employment.

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.

Troccoli v. Zarabi · filed 2008-12-30(a)(1)

The documentary evidence submitted by the defendant did not utterly refute the plaintiffs allegations, and thus did not conclusively establish a defense to that cause of action as a matter of law.

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

Haire v. Bonelli · filed 2008-12-31(a)(1)

Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Leon v Martinez, 84 NY2d at 88).

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.

Vogel v. Tunick · filed 2009-01-15(a)(1)

It is well settled that a motion to dismiss a complaint on the ground that the action is barred by documentary evidence (CPLR 3211 [a] [1]) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs 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]).

Documentary evidence warrants dismissal under CPLR 3211(a)(1) when it utterly refutes the complaint’s factual allegations and conclusively establishes a defense as a matter of law.

Sagemark Companies v. Arch Insurance · filed 2009-02-04(a)(1)

Where the documentary evidence “utterly refutes Plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” dismissal is warranted.

Under CPLR 3211(a)(1), documentary evidence must conclusively establish a defense to warrant dismissal.

Dartnell Enterprises, Inc. v. Hewlett-Packard Co. · filed 2009-02-06(a)(1)

We therefore conclude, based on the allegations of plaintiff in the complaint in this action, that defendant failed to submit documentary evidence conclusively establishing that the statute of limitations had not been tolled with respect to the first cause of action concerning acts committed before March 10, 2002.

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

Hayes v. Bello · filed 2009-02-11(a)(1)

With regard to defendant’s motion to dismiss under CPLR 3211 (a) (1), it is well settled that in order to succeed on such a motion, the documentary evidence submitted must (1) resolve all factual issues as a matter of law, and (2) conclusively dispose of the plaintiffs claims (see Teitler v Pollack & Sons, 288 AD2d 302 [2001]). ... Dismissal of the complaint pursuant to CPLR 3211 (a) (1) is therefore unwarranted.

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

Ballas v. Virgin Media, Inc. · filed 2009-03-10(a)(1)

“On a motion to dismiss based upon documentary evidence, dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Klein v Gutman, 12 AD3d 417, 418 [2004]; see CPLR 3211 [a] [1]).

A documented settlement and release can support dismissal under CPLR 3211(a)(5) even when no voluntary discontinuance was filed.

Lim v. Choices, Inc. · filed 2009-03-10(a)(5)

Moreover, contrary to the plaintiffs contention, notwithstanding the absence of the filing of a voluntary discontinuance under CPLR 3217, the documentary evidence proffered in support of the motion clearly evidenced the plaintiffs intent to release the defendant from the action (see Gale v Citicorp, 278 AD2d 197 [2000]; see also Spence v Jones, 51 AD3d 771, 772 [2008]; Hanna v Ford Motor Co., 252 AD2d 478 [1998]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

Documentary evidence warrants dismissal under subsection (a)(1) only if it conclusively establishes a defense to the claims as a matter of law.

Amaro v. Gani Realty Corp. · filed 2009-03-17(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 {id. at 88).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense as a matter of law.

Cochard-Robinson v. Concepcion · filed 2009-03-17(a)(1)

Dismissal of a complaint pursuant to CPLR 3211 (a) (1) is appropriate where “the documentary evidence utterly refutes plaintiffs 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]).

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

Reid v. Gateway Sherman, Inc. · filed 2009-03-17(a)(1)

In order to prevail on a motion to dismiss based upon documentary evidence, 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 plaintiffs claim” (McCue v County of Westchester, 18 AD3d 830, 831 [2005]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). ... The Supreme Court, therefore, correctly denied that branch of the motion of Renaissance which was to dismiss the complaint and all cross claims insofar as asserted against it on the basis of documentary evidence.

A motion to dismiss under CPLR 3211(a)(5) may be granted on an unambiguous general release when the releasor offers only an unsubstantiated claim that it was not meant to cover the claim at issue.

Lipiner v. Santoli · filed 2009-03-31(a)(5)

Under these facts and circumstances, Santoli’s unsubstantiated allegation that she did not intend the release to bar her contribution/indemnification claim against Edward Lipiner was insufficient to defeat the motion to dismiss (see General Obligations Law § 15-108 [a], [c]; Barry v Hildreth, 9 AD3d 341 [2004]; Touloumis v Chalem, 156 AD2d 230 [1989]; see also McNally v Corwin, 30 AD3d 482 [2006]; cf. Tarantola v Williams, 48 AD2d 552 [1975]).

A defendant’s factual affidavits are not documentary evidence that can support dismissal under CPLR 3211(a)(1).

Crepin v. Fogarty · filed 2009-02-19(a)(1)

While such affidavits might suffice to establish the elements of their defense in a motion for summary judgment, they do not afford a proper basis for a motion to dismiss based on documentary evidence.

A defendant seeking dismissal under CPLR 3211(a)(1) must submit documentary proof that defeats the plaintiff’s claimed status as a third-party beneficiary.

Hamlet on Olde Oyster Bay Home Owners Ass'n v. Holiday Organization, Inc. · filed 2009-02-24(a)(1)

These defendants failed to submit documentary proof that the plaintiffs were not third-party beneficiaries of their contracts with the sponsor (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership, 50 AD3d 503 [2008]; Board of Mgrs. of Alfred Condominium v Carol Mgt., 214 AD2d 380 [1995]).

Affidavits and letters do not qualify as documentary evidence for dismissal under CPLR 3211(a)(1).

Frenchman v. Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP · filed 2009-03-03(a)(1)

Here, the evidence on which the Wachsman Firm defendants rely to establish its statute of limitations defense, to wit: affidavits and letters, do not constitute documentary evidence for purposes of CPLR 3211 (a) (1) dismissal (see Realty Invs. of USA v Bhaidaswala, 254 AD2d 603 [3d Dept 1998] [holding that consideration of listing agreement, letter of intent and addenda, and affidavit was error on CPLR 3211 (a) (1) motion]; Kearins v Gruberg, McKay & Stone, 2 Misc 3d 1001[A], 2004 NY Slip Op 50065[U] [Sup Ct, Bronx County 2004]). Therefore, dismissal on this ground is denied.