N.Y. C.P.L.R. § 3211

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

Great American Insurance v. Simplexgrinnell · filed 2009-03-10(a)(1)

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered January 8, 2008, which granted defendant’s motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint, unanimously affirmed, with costs. ... Thus, the waiver conclusively established a defense to plaintiff insurer’s claim (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]).

Dismissal based on documentary evidence requires proof that definitively resolves all material factual issues and defeats the claim as a matter of law.

Wiener v. Spahn · filed 2009-03-31(a)(1)

Defendants are not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1), since they have not demonstrated that the documentary evidence definitively resolves all material issues of fact, thereby resulting in the failure of plaintiffs claim as a matter of law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Foster v Kovner, 44 AD3d 23, 28 [2007]).

Section 3211(a)(1) requires documentary evidence to utterly refute the complaint’s factual allegations and conclusively establish a defense as a matter of law.

Etzion v. Etzion · filed 2009-05-05(a)(1)

In order to prevail on that branch of their cross motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1), the defendants were required to demonstrate that “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 conclusively establishes a defense as a matter of law.

Douglas v. Dashevsky · filed 2009-05-26(a)(1)

To demonstrate entitlement to dismissal of a complaint pursuant to CPLR 3211 (a) (1), the documentary evidence submitted must conclusively establish a defense to the asserted claims, as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Williams v Williams, 36 AD3d 693, 695 [2007]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329, 330 [2002]).

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

Turner III v. Irving Finkelstein & Meirowitz, LLP · filed 2009-04-21(a)(1)

Pursuant to 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]; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]). Here, the defendant submitted the parties’ retainer agreement, which clearly stated that its representation was limited to the proceeding before the Board.

A motion to dismiss under CPLR 3211(a)(1) requires documentary evidence that defeats the claim.

Marcus v. Board of Trustees · filed 2009-05-12(a)(1)

However, neither the Board nor Wickes proffered any documentary evidence that the Village complied with the filing requirement of General Municipal Law § 239-m (6) (see CPLR 3211 [a] [1]).

Section 3211(a)(1) requires documentary evidence to conclusively refute the plaintiff’s allegations and establish a defense as a matter of law.

Surace v. Commonwealth Land Title Insurance · filed 2009-05-19(a)(1)

To prevail on that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1), the defendant was required to demonstrate that “the documentary evidence utterly refutes 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]). ... Moreover, contrary to the arguments of the defendant, the documentary evidence failed to refute the plaintiffs’ allegations.

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

West 64th Street, LLC v. Axis U.S. Insurance · filed 2009-06-09(a)(1)

The motion court properly granted defendant insurers’ motion to dismiss pursuant to CPLR 3211 (a) (1) since the documentary evidence submitted in support of the motion “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffis’] claim” (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002] [internal quotation marks omitted]; see GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611 [2008]).

CPLR 3211 (a) (1) requires documentary evidence to conclusively establish a defense before it can support dismissal.

Erie Insurance Group v. National Grange Mutual Insurance · filed 2009-06-18(a)(1)

Although the documentary evidence alone was insufficient to conclusively establish a defense, the record evidence supports a grant of summary judgment dismissing the complaint as against NGM and declaring that Pine Ridge is not an additional insured under the insurance policy at issue.

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.

Newcomb v. Sims · filed 2009-06-23(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be appropriately granted where 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]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Zeld, Assoc., Inc. v Marcario, 57 AD3d 660 [2008]; McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646, 647 [2008]).

Under CPLR 3211(a)(1), documentary evidence must conclusively establish a defense to a cause of action to support its dismissal.

School Construction Consultants, Inc. v. ARA Plumbing & Heating Corp. · filed 2009-06-23(a)(1)

Since the motion by Arch and Federal did not specifically address this cause of action, and the documents they submitted did not conclusively demonstrate that it should be dismissed, the Supreme Court erred in granting the motion to this extent.

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

Epifani v. Johnson · filed 2009-06-23(a)(1)

The documents submitted by Johnson in support of that branch of her motion which was pursuant to CPLR 3211 (a) (1) to dismiss so much of the seventh cause of action as alleged a violation of Labor Law § 191 (3) make clear that Johnson’s defense to Supple’s claim pursuant to Labor Law § 191 (3) is “not conclusively determinable without reference to” the course of dealing between Johnson and Supple that established which day was Supple’s regular payday (Sullivan v State of New York, 34 AD3d at 445).

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

Reznikov v. Walowitz · filed 2009-06-30(a)(1)

Accordingly, the documentary evidence submitted by the defendants conclusively established a defense as a matter of law, and the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint (see Newcomb v Sims, 63 AD3d 1022 [2009]; Zeld Assoc., Inc. v Marcarlo, 57 AD3d 660 [2008]).

Documentary evidence can support dismissal under CPLR 3211(a)(1) when it establishes a defendant’s reasonable exercise of a contractual termination right.

DeTorres v. Claxton-Hepburn Medical Center · filed 2009-08-06(a)(1)

Inasmuch as plaintiff does not dispute that its principal was a disqualified Medicaid provider, documentary evidence clearly supports Supreme Court’s conclusion that defendant exercised its reasonable judgment when it determined on the advice of counsel that the agreement would likely violate a Medicaid regulation.

CPLR 3211 (a) (1) requires documentary evidence that conclusively resolves the factual issues on which dismissal depends.

Melnicke v. Brecher · filed 2009-09-08(a)(1)

However, the recorded deeds the Weisses submitted failed to conclusively establish the identity of the beneficial owner of the subject property on June 1, 2001. Accordingly, the Supreme Court correctly denied the branch of the Weisses motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1).

A motion to dismiss under CPLR 3211(a)(5) based on a general release should be denied when factual issues and an insufficient record prevent determining whether the release covers the claims.

Levitt v. Edelstein · filed 2009-09-15(a)(5)

Accordingly, given the paucity of evidence in the record relating to this pre-answer motion, it cannot definitively be determined at this juncture whether the release was intended to cover the present claims of the petitioner (see e.g. Rimberg & Assoc., P.C. v Jamaica Chamber of Commerce, Inc., 40 AD3d 1066, 1067 [2007]), and that branch of the appellant’s cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the petition as barred by a general release was properly denied (see e.g. Ofman v Campos, 12 AD3d 581 [2004]).

CPLR 3211(a)(1) requires denial of a documentary-evidence motion to dismiss when the evidence does not definitively refute the claims.

Schwarz Supply Source v. Redi Bag USA, LLC · filed 2009-07-21(a)(1)

Here, the causes of action, inter alia, to recover damages for breach of contract were not definitively refuted by any documentary evidence presented by the defendant. Therefore, that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) should have been denied.

CPLR 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.

Vitarelle v. Vitarelle · filed 2009-09-08(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” ... Moreover, the documentary evidence submitted by the defendant failed to establish a defense to the action as a matter of law.

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

Stein v. Garfield Regency Condominium · filed 2009-09-15(a)(1)

The documentary evidence submitted by the defendant did not utterly refute the plaintiffs’ allegations, and thus, did not conclusively establish a defense as a matter of law. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against Garfield based upon documentary evidence (see CPLR 3211 [a] [1]).

Section 3211(a)(1) requires a party seeking dismissal based on documentary evidence to submit evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Khiyayev v. MikeSad Enterprises, Inc. · filed 2009-10-20(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 [2000]).

Under CPLR 3211(a)(1), documentary evidence must conclusively refute the plaintiff’s factual allegations to support dismissal.

Symbol Technologies, Inc. v. Deloitte & Touche, LLP · filed 2009-10-27(a)(1)

The documentary evidence submitted by Deloitte in support of its motion to dismiss does not completely refute Symbol’s claims that its managers’ actions were self-interested and harmed the corporation, and does not conclusively refute Symbol’s factual allegations that the adverse interest exception is applicable.

Section 3211(a)(1) permits dismissal when documentary evidence establishes that the pleaded claim fails.

Amaranth LLC v. J.P. Morgan Chase & Co. · filed 2009-11-05(a)(1)

Dismissal is also warranted under CPLR 3211 (a) (1) based on documentary evidence presented by the defendants including the full Client Agreement and excerpts from the NYMEX and Intercontinental Exchange Rules.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a policy exclusion and the plaintiff fails to refute that showing.

Outlook Realty, LLC v. United States Underwriters Insurance · filed 2009-10-20(a)(1)

In the instant case, the defendants conclusively established with documentary evidence that the policy exclusion for “independent contractors” “performing operations” for the plaintiff applied to defeat coverage for the instant loss (see Metropolitan Heat & Power Co., Inc. v AIG Claims Servs., Inc., 47 AD3d 621, 622 [2008]; Brooklyn Hosp.-Caledonian Hosp. v Medical Malpractice Ins. Assn., 286 AD2d 410, 411 [2001]). The plaintiff failed to refute that documentary showing. Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (1) and to declare that they were not obligated to defend or indemnify the plaintiff in the underlying action.

Affidavits do not constitute documentary evidence supporting dismissal under CPLR 3211(a)(1).

Herrnsdorf v. Bernard Janowitz Construction Corp. · filed 2009-11-04(a)(1)

Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211 (a) (1) because they do not constitute documentary evidence (see Berger v Temple Beth-El of Great Neck, 303 AD2d at 347).

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

Elm Sea Realty Corp. v. Chicoy · filed 2009-12-22(a)(1)

“To succeed on a motion to dismiss [a complaint] 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” ... The Supreme Court correctly determined that the documentary evidence submitted by the appellants did not conclusively dispose of the plaintiffs claims.

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

Morales v. AMS Mortgage Services, Inc. · filed 2010-01-12(a)(1)

“On a motion to dismiss based upon documentary evidence [under CPLR 3211 (a) (1)], dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law”

Under CPLR 3211(a)(1), conflicting evidence and ambiguous contract documents cannot support dismissal when they leave a factual issue unresolved.

Angelino v. Michael Freedus, D.D.S., P.C. · filed 2010-01-21(a)(1)

Given the factual contradictions in the affidavits and the internal ambiguity of the contract documents, it is not possible to resolve, in the context of this CPLR 3211 motion, plaintiffs right to sue for the 2007 rents, and Supreme Court therefor properly denied defendants’ motion with respect to the 2007 rents only.

CPLR 3211(a)(5) permits dismissal when a release executed before suit bars the plaintiff’s claims.

Himmelsbach v. George · filed 2010-02-11(a)(5)

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), based on a release executed by plaintiff prior to the commencement of the action. Pursuant to the terms thereof, plaintiff released defendant from “any and all claims” on account of “known and unknown personal injuries.” We conclude that Supreme Court erred in denying defendant’s motion, which was treated by the court as a motion for summary judgment pursuant to CPLR 3211 (c).

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 claim.

Archer v. Skokan · filed 2010-02-16(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 Snyder v Allstate Ins. Co., 70 AD3d 670 [2010]).

Section 3211(a)(1) requires a party seeking dismissal based on documentary evidence to submit evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Uzzle v. Nunzie Court Homeowners Ass'n · filed 2010-02-16(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 Leon v Martinez, 84 NY2d at 88).

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

KMK Safety Consulting, LLC v. Jeffrey M. Brown Associates, Inc. · filed 2010-04-06(a)(1)

Moreover, where the motion to dismiss is founded upon documentary evidence under CPLR 3211 (a) (1), the movant will only be entitled to dismissal if the documentary evidence submitted “conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d at 88; see Arker Cos. v New York State Urban Dev. Corp., 47 AD3d 739, 740 [2008]).

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

Moore v. Liberty Power Corp., LLC · filed 2010-04-06(a)(1)

“On a motion to dismiss based upon documentary evidence [under CPLR 3211 (a) (1)], 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]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Ballas v Virgin Media, Inc., 60 AD3d 712, 713 [2009] ; McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646, 647 [2008]).

Section 3211(a)(1) permits dismissal when documentary evidence establishes a contractual basis for termination and contradicts the plaintiff’s claims.

Sky Top Farms, Inc. v. Bilinski Sausage Mfg. Co. · filed 2010-05-13(a)(1)

Dismissal of the complaint based upon the documentary evidence was appropriate, where the termination clause of the parties’ contract allowed defendant to terminate the contract due to plaintiffs failure to purchase meat products from it for four consecutive time periods (see e.g. Daeun Corp. v A&L 444 LLC, 62 AD3d 479 [2009]), and plaintiffs claims that defendant acted in bad faith are contradicted by the evidence.

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when the documents utterly refute the plaintiff’s factual allegations and conclusively establish a defense as a matter of law.

Yusin v. Saddle Lakes Home Owners Ass'n · filed 2010-05-25(a)(1)

Thus, the Supreme Court properly denied those branches of the defendants’ cross motions which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) based on documentary evidence, since the documents submitted by the defendants failed to utterly refute the plaintiffs’ factual allegations, conclusively establishing a defense as a matter of law (see Rubinstein v Salomon, 46 AD3d 536, 539 [2007]).

Under CPLR 3211(a)(5), defendants can make a prima facie showing that claims are time-barred by establishing when they accrued.

Coombs v. Jervier · filed 2010-06-01(a)(5)

Here, in support of their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), the defendants established, prima facie, that the causes of action alleging fraud, constructive trust, and unjust enrichment were time-barred by showing that they accrued on February 8, 1995, the date when the alleged forgery occurred, or on February 24, 1995, when the subject deed was recorded (see Matter of Schwartz, 44 AD3d 779 [2007]; Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]).

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

Davis v. Lancaster · filed 2010-06-14(a)(1)

Dismissal of the complaint and its specific claims pursuant to CPLR 3211 (a) (1) requires documentary evidence that conclusively resolves all factual issues and establishes a defense as a matter of law.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively defeats a factual basis for the claim.

First Keystone Consultants, Inc. v. DDR Construction Services · filed 2010-06-22(a)(1)

The Supreme Court properly granted that branch of the motion of the third-party defendant Schlesinger-Siemens Electrical, LLC (hereinafter SSE), which was to dismiss the third-party cause of action alleging a breach of fiduciary duty insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7). ... Additionally, the documentary evidence, which included SSE’s operating agreement, conclusively established that DDR was not a member of SSE.

A release does not warrant dismissal under CPLR 3211(a)(1) or (5) when the record leaves factual issues about whether the parties intended it to cover the claims.

Kaprall v. We: Women's Entertainment, LLC · filed 2010-06-22(a)(1), (5)

Given the paucity of evidence in the record relating to this pre-answer motion, it cannot definitively be determined at this juncture whether the release was intended to cover the plaintiffs present claims (see e.g. Rimberg & Assoc., P.C. v Jamaica Chamber of Commerce, Inc., 40 AD3d 1066, 1067 [2007]).

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.

FG Harriman Commons, LLC v. FBG Owners, LLC · filed 2010-07-13(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence ... utterly refutes 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]).

CPLR 3211(a)(5) permits dismissal when a general release bars the claim as a matter of law, assuming the complaint’s allegations are true.

Arfa v. Zamir · filed 2010-07-13(a)(5)

We therefore reverse and grant the motion to dismiss that claim pursuant to CPLR 3211 (a) (5).

CPLR 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 claim.

Cheung v. Fu · filed 2010-07-27(a)(1)

The purported documentary evidence submitted by the appellants did not “resolve! ] all factual issues as a matter of law, and conclusively dispose of the plaintiff [s’] claim” as is required for dismissal under CPLR 3211 (a) (1) (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622 [2006], quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]; see Herrnsdorf v Bernard Janowitz Constr. Corp., 67 AD3d 640, 643 [2009]).

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.

Wild Oaks, LLC v. Beehan · filed 2010-10-26(a)(1)

“A motion to dismiss a complaint based on documentary evidence ‘may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ ” (Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128 [2009], quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see CPLR 3211 [a] [1]).

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

Zanani v. Meisels · filed 2010-11-09(a)(1)

Even accepting the allegations in the complaint as true (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]), Meisels’s documentary submissions in support of his motion conclusively established “a defense as a matter of law” with respect to the cause of action pursuant to Debtor and Creditor Law § 273 (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see CPLR 3211 [a] [1]; Fleming v Kamden Props., LLC, 41 AD3d 781 [2007]; Klein v Gutman, 12 AD3d 417, 418 [2004]), in that, inter alia, any alleged fraudulent conveyance between Schvimmer and Meisels failed to render the debtor, Schvimmer, insolvent as required by Debtor and Creditor Law § 273.

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

Soldiers', Sailors', Marines' & Airmen's Club, Inc. v. Carlton Regency Corp. · filed 2010-11-10(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 v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal of a demand for damages when documentary evidence establishes that a contract expressly precludes those damages.

Pacnet Network Ltd. v. KDDI Corp. · filed 2010-11-16(a)(1)

Defendant also is entitled to dismissal, based on documentary evidence (CPLR 3211 [a] [1]), of so much of the demand for damages as seeks consequential damages expressly precluded by the contractual provision limiting the parties’ liability for consequential damages.

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

All Island Media, Inc. v. Creative AD Worx, Inc. · filed 2010-12-07(a)(1)

Contrary to the Supreme Court’s determination, these documents did not utterly refute the plaintiffs allegations that the defendant owed it $34,814.25, particularly in light of the credit agreement.

CPLR 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.

Harbor View at Port Washington Home Owners Ass'n v. Amsterdam House Continuing Care Retirement Community, Inc. · filed 2010-12-14(a)(1)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), if the documentary evidence submitted by the defendant “utterly refutes [the] plaintiff’s factual allegations” and conclusively establishes a defense to the asserted claims as a matter of law, the motion may be granted (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

In re the Estate of Chin · filed 2010-12-14(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”

Under CPLR 3211(a)(1), documentary evidence supports dismissal when it conclusively resolves the factual issue underlying the claim.

Keehle v. Diocese of Syracuse · filed 2011-01-13(a)(1)

Inasmuch as the documentary evidence submitted by defendants conclusively established that plaintiff was still in defendants’ employ, albeit on medical leave, her complaint was properly dismissed (see generally Datena v JP Morgan Chase Bank, 73 AD3d at 684-685).

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

Campbell v. County of Westchester · filed 2011-01-18(a)(1)

The Supreme Court properly granted the motion of the defendants County of Westchester, Westchester County Police Department, Westchester County Department of Public Safety Services, and Police Officer “John” Tierney inter alia, pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them. The documentary evidence submitted by these moving defendants conclusively established that the ... plaintiff was arrested pursuant to a facially valid arrest warrant issued by a court having jurisdiction, thus defeating the causes of action to recover damages for false arrest and false imprisonment (see Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278, 286 [2003]; Russo v Village of Port Chester, 198 AD2d 408 [1993]; Saunsen v State of New York, 81 AD2d 252, 253 [1981]).

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.

S.J.J.K. Tennis, Inc. v. Confer Bethpage, LLC · filed 2011-02-01(a)(1)

Moreover, the documentary evidence submitted by the defendant Confer Bethpage, LLC (hereinafter the defendant) failed to conclusively establish “a defense to the asserted claims as a matter of law” (Klein v Gutman, 12 AD3d at 418; see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326).

A claim barred by a valid release may be dismissed under CPLR 3211(a)(5).

A.A. Truck Renting Corp. v. Navistar, Inc. · filed 2011-02-08(a)(5)

Therefore, Navistar sufficiently established that the release barred any claim arising from the rebate agreement (see Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658 [2004]). ... Accordingly, Navistar’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) should have been granted.

On a motion under CPLR 3211(a)(1), the moving party must show that documentary evidence conclusively refutes the plaintiff’s allegations.

TRIFICANA, RICHARD v. CARRIER, ROBERT M. · filed 2011-02-10(a)(1)

Moreover, “[i]n order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence [submitted in support thereof] conclusively refutes plaintiffs[’] . . . allegations” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-591; see Kumar v American Tr. Ins. Co., 49 AD3d 1353, 1354), and defendants failed to meet that burden here.

Under CPLR 3211(a)(1), a moving party must show that documentary evidence conclusively refutes the plaintiff’s allegations.

Trificana v. Carrier · filed 2011-02-10(a)(1)

Moreover, “[i]n order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence [submitted in support thereof] conclusively refutes plaintiff[s’] . . . allegations” ... and defendants failed to meet that burden here.

Under CPLR 3211(a)(1), a defendant seeking dismissal based on documentary evidence must produce documents that conclusively establish a defense as a matter of law.

Loevner v. Loevner · filed 2011-02-15(a)(1)

On this motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint based on a defense founded upon documentary evidence, the defendant failed to sustain his burden of coming forward with documentary evidence which “utterly refutes [the] 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]; Galvan v 9519 Third Ave. Rest. Corp., 74 AD3d 743 [2010]; Farber v Breslin, 47 AD3d 873, 876 [2008]).

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

Adler v. 20/20 Companies · filed 2011-03-15(a)(1)

Accordingly, Verizon conclusively established with documentary evidence that it was not a coemployer of the plaintiffs, and that branch of its motion which was pursuant to CPLR 3211 (a) (1) to dismiss the causes of action for violation of Labor Law § 215 insofar as asserted against it was properly granted.

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

Niagara County v. Power Authority · filed 2011-03-25(a)(1)

We agree with PASNY and the individual respondents, as trustees of PASNY (hereafter, PASNY respondents), that the court erred in denying those parts of their motion to dismiss the claims for alleged violations of state law based on documentary evidence pursuant to CPLR 3211 (a) (1).

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

Capogrosso v. Landsman · filed 2011-04-05(a)(1)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), if the documentary evidence submitted by the defendant “utterly refutes [the] plaintiff’s factual allegations” and conclusively establishes a defense to the asserted claims as a matter of law, the motion should be granted (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.

CCCLF, Inc. v. Bonin · filed 2011-04-12(a)(1)

Pursuant to CPLR 3211 (a) (1), a party may move to dismiss a cause of action based on documentary evidence which conclusively establishes a defense to the asserted claims as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Goldfarb v Schwartz, 26 AD3d 462 [2006]).

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

Kopelowitz & Co. v. Mann · filed 2011-04-12(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

Section 3211(a)(1) permits dismissal based on an unambiguous agreement that defeats the plaintiff’s contract claim.

Triax Capital Advisors, LLC v. Rutter · filed 2011-04-14(a)(1)

Order, Supreme Court, New York County (Richard B. Lowe, ... III, J.), entered on or about May 14, 2010, which, in an action for breach of contract, inter alia, denied defendants’ motion to dismiss the complaint based on documentary evidence, reversed, on the law, without costs, and the motion granted. ... Applying these principles, we find that the term “with any party who [plaintiff] has introduced” as used in the advisory agreement to trigger a transaction feed at the tail period, clearly does not refer to either Astoria or Amalgamated.

CPLR 3211(a)(1) does not support dismissal based on a lease that leaves unresolved factual issues that could dispose of the claims.

Castillo v. Star Leasing Co. · filed 2011-04-19(a)(1)

Cargo Connection’s proffer of the lease in support of that branch of its motion which was pursuant to CPLR 3211 (a) (1) did not resolve all factual issues which could dispose of the plaintiffs causes of action against it ... Accordingly, the Supreme Court properly denied that branch of Cargo Connection’s motion.

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.

ENZINNA, NICOLE M. v. D'YOUVILLE COLLEGE · filed 2011-05-06(a)(1)

We further conclude that the court properly denied defendant’s motion to dismiss the amended complaint for failure to state a cause of action and based on documentary evidence pursuant to CPLR 3211 (a) (1) and (7). The documentary evidence upon which defendant relies, i.e., the catalog referred to in the amended complaint as an example of one of defendant’s false advertisements, does not “resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs’ claim[s]” (DiGiacomo v Levine, 76 AD3d 946, 949; see Leon v Martinez, 84 NY2d 83, 88).

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

Etzion v. Etzion · filed 2011-05-17(a)(1)

Based upon the documentary evidence, consisting of the agreement, the plaintiff conclusively established, as a matter of law, that the defendant is not entitled to an award of an attorney’s fee, regardless of the outcome of the current dispute. ... Accordingly, the Supreme Court erred in denying that branch of the plaintiffs motion which was to dismiss the defendant’s counterclaim pursuant to CPLR 3211 (a) (1).

CPLR 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.

Thompsen v. Baier · filed 2011-05-17(a)(1)

A motion pursuant to CPLR 3211 (a) (1) may be 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 at 326; see Leon v Martinez, 84 NY2d at 88; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]; Lucia v Goldman, 68 AD3d 1064 [2009]; Elm Sea Realty Corp. v Chicoy, 68 AD3d 1047 [2009]).

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

Marist College v. Chazen Environmental Services, Inc. · filed 2011-05-24(a)(1)

Pursuant to CPLR 3211 (a) (1) a party may move to dismiss a cause of action based on documentary evidence which conclusively establishes a defense to the asserted claim as a matter of law (see Leon v Martinez, 84 NY2d 83 [1994]; Goldfarb v Schwartz, 26 AD3d 462 [2006]).

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

Dynamic Medical Imaging, P.C. v. State Farm Fire & Casualty Co. · filed 2011-06-16(a)(1)

Since the documentary proof does not resolve all factual issues and conclusively dispose of plaintiffs action, defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) is denied.

CPLR 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.

Hoffman v. Colleluori · filed 2011-06-28(a)(1)

A motion pursuant to CPLR 3211 (a) (1) may be 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 Thompsen v Baier, 84 AD3d 1062 [2011]). Here, the documentary evidence did not conclusively establish that all of the underlying causes of action were time-barred before the plaintiff retained the defendants.

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.

Cog-Net Building Corp. v. Travelers Indemnity Co. · filed 2011-07-19(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiffs allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811 [2011]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

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

US Express Leasing, Inc. v. Elite Technology (NY), Inc. · filed 2011-08-25(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’ ” (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 5 [2004], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]).

CPLR 3211(a)(1) permits dismissal of a contract claim against an individual when the agreement bars enforcement against him.

Lawrence v. Kennedy · filed 2011-09-22(a)(1)

Turning to the movants’ additional assertions, that branch of Michael F. Kennedy’s cross motion which is to dismiss the complaint insofar as interposed against him should be granted (CPLR 3211 [a] [1]). ... Moreover, paragraph 19 of the agreement is plain in its import and meaning with respect to the plaintiffs ability to enforce the agreement against individual, nonsignatories and/or members of the Firm and its employees.

Medical records must conclusively refute the plaintiff’s claim to support dismissal based on documentary evidence under CPLR 3211(a)(1).

Mason v. First Central National Life Insurance · filed 2011-07-21(a)(1)

In our view, under these circumstances, the contents of decedent’s medical records are not so “essentially undeniable” as to qualify as documentary evidence that conclusively refutes any claim that plaintiff might have to recover under this policy (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 22; Fontanetta v John Doe 1, 73 AD3d 78, 83-84 [2010]).

Documentary evidence does not support dismissal under CPLR 3211(a)(1) when it leaves a material breach of contract unresolved.

Schutty v. Speiser Krause P.C. · filed 2011-07-28(a)(1)

The invoice and other documents in the record do not establish whether plaintiff began this work with the intent to benefit only himself before Speiser told him that the payment of his salary would be suspended, and thus we cannot determine as a matter of law that plaintiff was in material breach of the contract.

CPLR 3211(a) does not permit dismissal when the documentary evidence leaves a material factual issue unresolved.

Genger v. Genger · filed 2011-09-08(a)

The documentary evidence, far from establishing Sagi’s authority to effect the transfers in question, raises an issue as to the existence of such authority that cannot be resolved on a motion to dismiss pursuant to CPLR 3211 (a).

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

Putnam County Temple & Jewish Center, Inc. v. Rhinebeck Savings Bank · filed 2011-09-27(a)(1)

Contrary to the attorneys’ contention, that cause of action was pleaded with sufficient specificity (see CPLR 3016 [b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]; PDK Labs v Krape, 277 AD2d 211 [2000]), and the attorneys’ documentary evidence failed to “resolvef ] all factual issues as a matter of law, and conclusively dispose[ ] of the plaintiff’s claim” (Brunot v Eisenberger & Co., 266 AD2d 421 [1999]; see CPLR 3211 [a] [1]).

An affidavit does not qualify as documentary evidence for a motion to dismiss under CPLR 3211(a)(1).

HSBC Bank, USA v. Pugkhem · filed 2011-10-04(a)(1)

An affidavit does not constitute documentary evidence for purposes of CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d 78, 85 [2010]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).

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

Schetty v. Target Corp. · filed 2011-10-25(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 “utterly refute[ ] 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]; see Bodden v Kean, 86 AD3d 524, 526 [2011]).

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.

Francis v. Vornado Realty Trust/Kings Plaza Mall · filed 2011-11-01(a)(1)

Here, the Supreme Court correctly determined that the documentary evidence submitted by the defendant Vornado Realty Trust/Kings Plaza Mall utterly refuted the factual allegations of the plaintiffs complaint and conclusively established a defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2010]; Fontanetta v John Doe 1, 73 AD3d at 83).

A motion to dismiss based on documentary evidence requires evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Giunta's Meat Farms, Inc. v. Pina Construction Corp. · filed 2011-11-09(a)(1)

“A party seeking to dismiss pursuant to CPLR 3211 (a) (1) on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim” ... The documentary evidence submitted by Marshalls, including various leases and agreements, failed to resolve all factual issues as a matter of law.

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

Ofman v. Katz · filed 2011-11-15(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence relied on by the defendant must “conclusively establish[ ] a defense to the asserted claims as a matter of law”

Documentary evidence supports dismissal under CPLR 3211(a)(1) only if it utterly refutes the plaintiff’s allegations and conclusively establishes a defense as a matter of law.

Bekas v. Valiotis · filed 2011-12-13(a)(1)

The Supreme Court erred in granting that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1). The documentary evidence submitted by the defendants did not utterly refute the plaintiffs allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74 [2003]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2003]).

Under CPLR 3211(a)(1), documentary evidence supporting dismissal must be unambiguous and of undisputed authenticity.

Torah v. Dell Equity, LLC · filed 2011-12-13(a)(1)

The Supreme Court also erred in granting that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1) based on the documentary evidence. ... Here, the satisfaction of mortgage was not “unambiguous and of undisputed authenticity,” as two different versions of it were produced, one indicating that the mortgage principal was $40,000 and the other indicating that the mortgage principal was $400,000.

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

Peter Williams Enterprises, Inc. v. New York State Urban Development Corp. · filed 2011-12-27(a)(1)

A CPLR 3211 (a) (1) motion to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiffs allegations, 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 when documentary evidence conclusively disposes of the claims.

Motor Parkway Enterprises, Inc. v. Loyd Keith Friedlander Partners, Ltd. · filed 2011-11-29(a)(1)

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint. The documentary evidence submitted by the defendants, including the application for insurance signed by the plaintiff’s president and the resulting policy of insurance furnished by the defendants to the plaintiff, conclusively disposed (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]) of the plaintiffs claims that the defendants procured insurance coverage in an amount other than that requested by the plaintiff (see Sung v Kyung Ip Hong, 254 AD2d 271, 272 [1998]).

CPLR 3211(a)(1) permits dismissal when an escrow agreement submitted as documentary evidence contains an exculpatory clause that bars the claims.

Baquerizo v. Monasterio · filed 2011-12-06(a)(1)

While we disagree with the Supreme Court’s reliance upon lack of privity as a basis for dismissing the causes of action sounding in breach of the subject escrow agreement, breach of the duty of good faith and fair dealing, and breach of fiduciary duty, the defendant’s motion to dismiss those causes of action was properly granted, pursuant to CPLR 3211 (a) (1). The documentary evidence submitted on the motion included the escrow agreement, which contained an exculpatory clause that bound the plaintiffs and waived any liability against the defendant except for gross negligence or willful misconduct (see Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]).

Section 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.

Lopez v. Fenn · filed 2011-12-27(a)(1)

Pursuant to CPLR 3211 (a) (1), a motion to dismiss on the basis of a defense founded on documentary evidence may be granted “where the documentary evidence utterly refutes [the complaint’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]).

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

Martin v. Liberty Mutual Insurance · filed 2012-02-14(a)(1)

Thus, the documentary evidence conclusively establishes a defense to this cause of action as a matter of law, and it must be dismissed pursuant to CPLR 3211 (a) (1).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes that the alleged loss is not covered by the governing policy.

Peters Auto Works, Inc. v. Commonwealth Land Title Insurance · filed 2012-02-14(a)(1)

Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion, inter alia, pursuant to CPLR 3211 (a) (1) to dismiss the complaint. The documentary evidence submitted by the defendant conclusively established that the alleged loss suffered by the plaintiff was not covered by the subject title insurance policy (see CPLR 3211 [a] [1]; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

Greenapple v. Capital One, N.A. · filed 2012-02-21(a)(1)

The motion court also erred in granting Goldberg’s motion pursuant to CPLR 3211 (a) (1) since a pre-answer motion for dismissal based upon documentary evidence should only be granted when “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 conclusively establishes a defense as a matter of law.

Maimonides Medical Center v. First United American Life Insurance · filed 2012-02-22(a)(1)

The court may dismiss a cause of action under CPLR 3211 (a) (1) “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon, 84 NY2d at 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 claim.

Sato Construction Co. v. 17 & 24 Corp. · filed 2012-02-28(a)(1)

To succeed on a motion to dismiss a complaint 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 Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Jesmer v Retail Magic, Inc., 55 AD3d 171, 180 [2008]; Prudential Wykagyl/Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]).

Under CPLR 3211(a)(1), unsupported assertions that submitted documents are fraudulent are insufficient to defeat a motion to dismiss.

Carr v. Hayes · filed 2012-02-16(a)(1)

Moreover, plaintiffs unsupported assertions that all of the documentation regarding the sale of the home, submitted to the court below, was “fraudulent,” “false” and “staged,” are insufficient to defeat the motion to dismiss plaintiffs claims for fraud, conversion and legal malpractice (see CPLR 3211 [a] [1]).

On a motion to dismiss under section 3211(a)(1), an affidavit may authenticate documentary evidence and connect it to the challenged statements.

Muhlhahn v. Goldman · filed 2012-03-01(a)(1)

An affidavit is an appropriate vehicle for authenticating and submitting relevant documentary evidence (see Suss v New York Media, Inc., 69 AD3d 411, 412 [2010]), and may provide “connecting link[s]” between the documentary evidence and the challenged statements (Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112, 112 [1991]).

Section 3211(a)(1) requires documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the claim.

Camisa v. Papaleo · filed 2012-03-06(a)(1)

Further, in support of that branch of their motion which sought dismissal pursuant to CPLR 3211 (a) (1), the defendants failed to sustain their burden of submitting documentary evidence sufficient to resolve all factual issues as a matter of law, and conclusively dispose of the plaintiffs’ fraud claims (see Leon v Martinez, 84 NY2d at 88; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 930 [2010]).

CPLR 3211 (a) (1) permits dismissal based on documentary evidence only when that evidence definitively contradicts the complaint’s factual allegations.

Gomez-Jimenez v. New York Law School · filed 2012-03-21(a)(1)

A complaint may be dismissed based upon documentary evidence pursuant to CPLR 3211 (a) (1) only if the factual allegations are definitively contradicted by the evidence submitted.

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

Marinelli v. Gabriel & Sciacca, CPA, LLP · filed 2012-04-10(a)(1)

The documentary evidence submitted by the defendant failed to conclusively establish a defense to the asserted claims as a matter of law. Thus, the Supreme Court should have denied that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint (see CPLR 3211 [a] [1]; S.J.J.K. Tennis, Inc. v Confer Bethpage, LLC, 81 AD3d 630 [2011]).

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

Pallotta v. City of New York · filed 2012-04-10(a)(1)

The documentary evidence submitted by Urbitran in support of its motion to dismiss the third-party complaint resolved all factual issues as a matter of law and conclusively disposed of the third-party claims (see CPLR 3211 [a] [1]; Manfro v McGivney, 11 AD3d 662, 663 [2004]).

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

Solomons v. Douglas Elliman LLC · filed 2012-04-05(a)(1)

A motion to dismiss under CPLR 3211, when based on documentary evidence, is granted only if that evidence “utterly refutes 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]).

Affidavits do not qualify as documentary evidence on a motion to dismiss under CPLR 3211(a)(1).

Flushing Savings Bank v. Siunykalimi · filed 2012-04-10(a)(1)

Contrary to the defendants’ contention, the affidavit of Siunykalimi’s sister, in which she claimed that she personally mailed the contested checks, was not properly considered by the Supreme Court, since affidavits do not constitute documentary evidence for the purposes of a motion to dismiss pursuant to CPLR 3211 (a) (1) (see HSBC Bank, USA v Pugkhem, 88 AD3d 649, 651 [2011]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).

Section 3211(a)(1) permits dismissal when documentary evidence disproves the ownership and lessor status on which a claim depends.

Pedroli v. Mercedes-Benz USA, LLC · filed 2012-04-10(a)(1)

Since the Mercedes Benz defendants established, through documentary evidence, that they were not the owners and lessors of the vehicle, the Supreme Court should have granted that branch of the motion which was to dismiss the complaint insofar as asserted against them (see CPLR 3211 [a] [1]).

A verified answer in a prior action can be documentary evidence under CPLR 3211(a)(1), but it supports dismissal only if it conclusively disposes of the claim.

In re the Estate of Perricelli · filed 2012-04-12(a)(1)

Although the decedent’s verified answer in the divorce action constitutes “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Fontanetta, 73 AD3d at 84-85 [judicial records constitute documentary evidence]), it does not conclusively dispose of the petitioner’s claim in this case.

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

Robertson v. Wells · filed 2012-05-01(a)(1)

“A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law”

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.

Basalel v. Youni Gems Corp. · filed 2012-05-08(a)(1)

“To succeed on a motion . . . 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”

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

Cervini v. Zanoni · filed 2012-05-08(a)(1)

Here, the defendant failed to present any documentary evidence that conclusively established a defense as a matter of law ... Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1).

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

Trystate Mechanical, Inc. v. Macy's Retail Holdings, Inc. · filed 2012-04-24(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1) based upon documentary evidence, dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Martin v Liberty Mat. Ins. Co., 92 AD3d 729 [2012]).

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

Trystate Mechanical, Inc. v. TEFCO, LLC · filed 2012-04-24(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1) based upon documentary evidence, dismissal is warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Martin v Liberty Mut. Ins. Co., 92 AD3d 729 [2012]).

Section 3211(a)(1) permits dismissal of a breach of contract claim when documentary evidence conclusively establishes that no breach occurred.

Ferrari v. Iona College · filed 2012-05-10(a)(1)

Plaintiff’s breach of contract claim should have been dismissed, as the documentary evidence conclusively establishes that plaintiffs termination from her employment as an assistant professor at defendant Iona College did not breach her contract with Iona or the provisions of Iona’s Faculty Handbook, which were incorporated by reference into the contract (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83, 88 [1994]).

Documentary evidence that conclusively establishes at-will employment supports dismissal of a breach of contract claim under CPLR 3211.

Susman v. Commerzbank Capital Markets Corp. · filed 2012-05-10(a)(1)

Supreme Court properly dismissed the first cause of action for breach of contract since the documentary evidence conclusively established that plaintiff was an at-will employee and thus defendants were authorized to terminate his employment at any time for any reason, or for no reason (see Smalley v Dreyfus Corp., 10 NY3d 55 [2008]).

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

Gordon v. Boyd · filed 2012-06-06(a)(1)

Under these circumstances, the defendants were not entitled to dismissal pursuant to CPLR 3211 (a) (1) since the documentary evidence submitted by them failed to utterly refute the plaintiffs factual allegations and conclusively establish a defense as a matter of law (see Farber v Breslin, 47 AD3d 873, 876 [2008]).

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.

Kilmer v. Miller · filed 2012-06-07(a)(1)

Such motion to dismiss succeeds when “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]; see CPLR 3211 [a] [1]; Mason v First Cent. Natl. Life Ins. Co. of NY., 86 AD3d 854, 855 [2011]).

Section 3211(a)(1) does not permit dismissal based on submissions that do not qualify as documentary evidence.

Parekh v. Cain · filed 2012-06-13(a)(1)

Finally, Locasio was not entitled to dismissal of the complaint insofar as asserted against him based upon CPLR 3211 (a) (1) since his submissions in support thereof did not constitute documentary evidence within the meaning of the statute (see Fontanetta v John Doe 1, 73 AD3d 78 [2010]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes that the plaintiff has no cause of action.

Patterson v. Somerset Investors Corp. · filed 2012-06-13(a)(1)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action alleging a violation of General Business Law § 349 is granted. ... Accordingly, the documentary evidence submitted by the defendant on the motion conclusively established that the plaintiff had no cause of action pursuant to General Business Law § 349.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively resolves the factual and legal issues underlying a claim.

North Dock Tin Boat Ass'n v. New York State Office of General Services · filed 2012-06-14(a)(1)

Petitioners did not identify any ambiguities or inaccuracies in respondents’ documentary evidence, nor did they otherwise show that this evidence did not resolve the legal and factual issues underlying their claims; accordingly, their second and third causes of action were properly dismissed for failure to state a cause of action (see Crepin v Fogarty, 59 AD3d 837, 839 [2009]; Adamkiewicz v Lansing, 288 AD2d 531, 532 [2001]; compare Lopes v Bain, 82 AD3d 1553, 1554-1555 [2011]; Witiuk v Mykytiw, 216 AD2d 779, 780-781 [1995]).

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

Kappa Development Corp. v. Queens College Point Holdings, LLC · filed 2012-05-23(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Bodden v Kean, 86 AD3d 524, 526 [2011]; Orangetown Home Improvements, LLC v Kiernan, 84 AD3d 902, 903 [2011]).

CPLR 3211(a)(1) does not permit dismissal based on an agreement to mediate and arbitrate because that agreement is not a defense to the action.

C & M 345 North Main Street, LLC v. Nikko Construction Corp. · filed 2012-06-13(a)(1)

However, an agreement to submit a dispute to mediation and arbitration is not a defense to an action, and, thus, may not be the basis for a motion to dismiss a complaint based on documentary evidence (see Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933, 940 [2011]; Curran v Estate of Curran, 87 AD3d 607 [2011]; Nachman v Jenelo Corp., 25 AD3d 593 [2006]).

Under CPLR 3211(a)(1), a purported agreement whose authenticity is disputed cannot support dismissal based on documentary evidence.

Parekh v. Cain · filed 2012-06-13(a)(1)

Here, there are disputed issues relating to the authenticity of the operating agreement. Accordingly, dismissal of these causes of action insofar as asserted against the Orissa defendants was not warranted pursuant to CPLR 3211 (a) (1) (see Berenthal & Assoc. v Mechanical Plastics Corp., 288 AD2d 143 [2001]; Paynter v Vishnia, 114 AD2d 404 [1985]; see generally Kurtzman v Bergstol, 40 AD3d 588, 590 [2007]; Limited Liability Company Law § 702; Matter of 1545 Ocean Ave., LLC, 72 AD3d 121 [2010]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively disposes of a claim, and section 3211(a)(5) permits dismissal when documentary evidence establishes payment as a matter of law.

Ragins v. Hospitals Insurance · filed 2012-06-13(a)(1), (a)(5)

Contrary to the plaintiffs contention, the documentary evidence submitted by HIC, including the insurance policies and a check payable to the plaintiff in the underlying action, representing HIC’s proportional share of the costs and interest set forth in the amended judgment, conclusively disposed of the plaintiffs claim that HIC failed to satisfy its obligations under the excess policy. ... Accordingly, the Supreme Court should have granted those branches of HIC’s motion which were pursuant to CPLR 3211 (a) (1) and (5), in effect, to dismiss so much of the complaint as sought to recover damages for breach of the subject insurance policy and for a judgment declaring that they are not obligated to indemnify the plaintiff for costs and the remaining amount of unpaid interest incurred in connection with the underlying action.

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

North Dock Tin Boat Ass'n v. New York State Office of General Services · filed 2012-06-14(a)(1)

Such a motion “may be granted where the documentary evidence submitted resolves all factual issues as a matter of law and definitively disposes of the plaintiff’s claim” (Wallach v Hinckley, 12 AD3d 893, 894 [2004]). ... We agree with Supreme Court that these documents, as supplemented by other maps, deeds and surveys submitted by respondents, conclusively demonstrate that the property where petitioners’ cabins are now located lies wholly north and east of the land conveyed to the proprietors, that no part of the subject property was included in the 1785 conveyance, and that the property remained in State ownership until the letters patent were issued to the City.

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

Harris v. Barbera · filed 2012-06-20(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party “utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law” (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796 [2011]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

Under section 3211(a)(1), a retainer agreement that does not dispose of the pleaded allegations cannot support dismissal.

Harris v. Barbera · filed 2012-06-20(a)(1)

Contrary to the defendants’ contentions, the retainer agreement was insufficient documentary evidence to dispose of those allegations.

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

Pratik Apparels, Ltd. v. Shintex Apparel Group, Inc. · filed 2012-06-20(a)(1)

Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff’s action against Classic must be brought in federal court (see CPLR 3211 [a] [1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530 [2008]). ... Accordingly, the Supreme Court correctly granted that branch of Classic’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it.

A prior denial of dismissal under CPLR 3211(a)(1) does not bar reexamination of an amended complaint based on documentary evidence submitted for the first time.

Plaza PH2001 LLC v. Plaza Residential Owner LP · filed 2012-06-26(a)(1)

But our previous finding that defendants “failed to establish grounds to dismiss the contract claim pursuant to CPLR 3211 (a) (1)” does not preclude reexamination of the amended complaint’s restated contract claim pursuant to CPLR 3211 (a) (1), based on evidence not submitted on the first dismissal motion.

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

David v. Hack · filed 2012-07-10(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence relied on by the defendant must “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 conclusively establishes a defense to the pleaded claims.

Jackson v. YAM Holding Corp. · filed 2012-07-11(a)(1)

Here, the documentary evidence submitted by the defendants conclusively established that the defendants did not constructively evict the plaintiffs or breach the lease by failing to install a sprinkler system and water main as the plaintiffs requested in order to utilize the premises as a catering hall.

CPLR 3211(a)(1) permits dismissal when the parties’ contract conclusively shows that alleged fraudulent misrepresentations were not collateral to the contract.

Gorman v. Fowkes · filed 2012-07-18(a)(1)

Here, in support of their motion, the defendants submitted the parties’ contract, which conclusively established that the alleged fraudulent misrepresentations at issue were not collateral or extraneous to the contract. ... Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the third cause of action alleging fraud.

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

Yellow Book Sales & Distribution Co. v. Hillside Van Lines, Inc. · filed 2012-08-22(a)(1)

On a motion to dismiss a counterclaim based upon documentary evidence pursuant to CPLR 3211 (a) (1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the counterclaim 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 at 88; Ballas v Virgin Media, Inc., 60 AD3d at 713; Klein v Gutman, 12 AD3d 417, 418 [2004]).

Letters and emails do not qualify as documentary evidence supporting dismissal under CPLR 3211(a)(1).

Cives Corp. v. George A. Fuller Co. · filed 2012-07-18(a)(1)

Here, the letters and emails submitted by Liberty did not constitute “documentary evidence” under CPLR 3211 (a) (1) and, thus, should not have been considered by the Supreme Court (see Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]).

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

Goldberg v. Levine · filed 2012-07-18(a)(1)

Thus, the documentary evidence submitted by the defendant conclusively establishes a defense to the claim as a matter of law (see Goshen v Mutual Life Ins: Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) permits dismissal based on lease terms only when they conclusively establish a defense to the claims as a matter of law.

Disunno v. WRH Properties, LLC · filed 2012-07-25(a)(1)

Further, contrary to the defendant’s contention, the terms of the subject lease do not conclusively establish a defense to the asserted claims as a matter of law (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

Forest Laboratories, Inc. v. Arch Insurance · filed 2012-09-12(a)(1)

A motion brought pursuant to CPLR 3211 (a) (1) “may be granted where ‘documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.’ ”

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

Moulton Paving, LLC v. Town of Poughkeepsie · filed 2012-09-19(a)(1)

Since the documentary evidence submitted by the Marquise defendants “resolve[d] all factual issues as a matter of law, and conclusively dispose[d] of the plaintiff’s claim” ... the Supreme Court properly granted that branch of the Marquise defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the cause of action alleging breach of contract against Marquise and the causes of action alleging tortious interference with contract against Robbie and Robin “Doe.”

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

In re Baugher · filed 2012-09-26(a)(1)

Here, the Surrogate’s Court properly denied that branch of the subject motion which was to dismiss the petition pursuant to CPLR 3211 (a) (1), as the documentary evidence submitted in support of the motion did not resolve all the factual issues as a matter of law and conclusively dispose of the petitioner’s contentions (see Leon v Martinez, 84 NY2d at 88).

Documentary evidence under CPLR 3211(a)(1) must be unambiguous and of undisputed authenticity.

Norment v. Interfaith Center · filed 2012-09-12(a)(1)

In order to be considered documentary evidence within the meaning of CPLR 3211 (a) (1), the evidence “must be unambiguous and of undisputed authenticity” (Fontanetta v John Doe 1, 73 AD3d at 86), that is, it must be “essentially unassailable” (Suchmacher v Manana Grocery, 73 AD3d at 1017).

Section 3211(a)(1) permits dismissal when documentary proof refutes an essential allegation of a claim.

Sobel v. Ansanelli · filed 2012-09-19(a)(1)

However, the Supreme Court should have granted that branch of the defendants’ motion which was to dismiss the fourth cause of action alleging breach of contract pursuant to CPLR 3211 (a) (1). The gravamen of this claim is that the defendants “failed in their contractual obligation” to obtain Medicaid benefits, and this allegation is refuted by the documentary proof that the decedent’s application for Medicaid benefits was indeed approved.

A lease can support dismissal under CPLR 3211(a)(1) when its terms establish a defense as a matter of law.

Midorimatsu, Inc. v. Hui Fat Co. · filed 2012-10-03(a)(1)

Thus, since the lease constitutes documentary evidence establishing a defense as a matter of law to the plaintiffs first cause of action, the Supreme Court correctly granted that branch of HFC’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss that cause of action insofar as asserted against it.

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

Baker v. Inamdar · filed 2012-10-10(a)(1)

On a motion to dismiss the complaint pursuant to 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 at 88; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

CPLR 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.

Rodeo Family Enterprises, LLC v. Matte · filed 2012-10-10(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claims at issue (see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 576 [2008]; *783 Fleming v Kamden Props., LLC, 41 AD3d 781, 781 [2007]).

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

Mass OP, LLC v. Principal Life Insurance · filed 2012-10-17(a)(1)

Here, the documentary evidence in the record conclusively establishes, as a matter of law, defenses to the complaint, which alleged breach of contract and fraud, insofar as asserted against the defendant Principal Life Insurance Company. Accordingly, the Supreme Court properly granted that branch of that defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss those causes of action insofar as asserted against it.

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

Sands Point Partners Private Client Group v. Fidelity National Title Insurance · filed 2012-10-24(a)(1)

Inasmuch as the documentary evidence submitted by Fidelity in support of its motion conclusively established that no cause of action alleging matters insured by the policy had been asserted against the plaintiff, Fidelity did not breach the policy and the Supreme Court properly granted that branch of Fidelity’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint.

Affidavits are not documentary evidence for a motion to dismiss under CPLR 3211 (a) (1).

Flowers v. 73rd Townhouse LLC · filed 2012-10-04(a)(1)

The affidavits submitted by defendants were not “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see e.g. Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2d Dept 2010]), and without the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC made distributions that were protected by the statute of limitations in Limited Liability Company Law § 508 (c).

Under CPLR 3211(a)(1), documents that suggest a different account do not warrant dismissal unless they conclusively refute the complaint’s allegations.

Airey v. Remmele · filed 2012-10-15(a)(1)

Although the email exchange of November 2010 and the more formal written contract of January 2011 certainly tend to show that defendant was engaged as a “business coach,” neither the exchanged emails nor the terse written contract on its face refutes the allegation that defendant was already engaged in providing marriage counseling to the couple.

Corporate minutes that are contradicted by other evidence do not support dismissal under CPLR 3211(a)(1).

Rabos v. R&R Bagels & Bakery, Inc. · filed 2012-11-21(a)(1)

Here, the corporate minutes submitted by the Rakhminov defendants in support of their motion do not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955 [2012]; cf. Levine v Behn, 282 NY 120 [1940]).

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

Stein, LLC v. Lawyers Title Insurance · filed 2012-11-07(a)(1)

Moreover, to the extent the plaintiff sought an award of an attorney’s fee based on the terms of the title insurance policy, documentary evidence in the record, specifically, the title insurance policy itself, which contains no provision permitting the recovery of an attorney’s fee (see e.g. Ragins v Hospitals Ins. Co., Inc., 96 AD3d 819 [2012]), conclusively disposes of the plaintiffs claim.

A retainer agreement can support dismissal as documentary evidence when it conclusively resolves the factual issues and disposes of the claims.

WELLS FARGO BANK, N.A. v. ZAHRAN, ALI A. · filed 2012-11-16(a)(1)

We agree with Rupp Baase that the retainer agreement constitutes documentary evidence and “ ‘resolves all factual issues as a matter of law, and conclusively disposes of the [defendant’s] claim[s]’ ” against it, including the ...claim in the fifth cause of action for malpractice (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383; see Leon v Martinez, 84 NY2d 83, 88).

Section 3211(a)(1) does not permit dismissal when the purported documentary evidence is contradicted by other evidence in the record.

Rabos v. R&R Bagels & Bakery, Inc. · filed 2012-11-21(a)(1)

Indeed, the record contains evidence which directly contradicts the purported documentary evidence. Accordingly, those branches of the Rakhminov defendants’ motion which were pursuant to CPLR 3211 (a) (1) to dismiss the first and second causes of action insofar as asserted against them should have been denied.

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

Rojas v. Paine · filed 2012-12-12(a)(1)

“A CPLR 3211 (a) (1) motion to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s allegations, conclusively establishing a defense as a matter of law” ... Here, the documentary evidence established that the sale of the property that was the subject of the contract had closed, and the deed had been delivered. ... Therefore, the Supreme Court properly granted that branch of the Paines’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the second 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.

Green v. Gross & Levin, LLP · filed 2012-12-26(a)(1)

However, the documentary evidence did not conclusively establish a defense as a matter of law as to the remaining causes of action.

Under CPLR 3211(a)(1), ambiguous documentary evidence that does not conclusively establish a defense cannot support dismissal.

State Farm Fire & Casualty Co. v. Main Bros. Oil Co. · filed 2012-12-27(a)(1)

While this language certainly suggests that Ackner may not have assumed liability for past acts of negligence related to the installation of a boiler, we agree with plaintiff that other aspects of the asset purchase agreement render it ambiguous, precluding a finding as a matter of law.

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

Excel Realty Advisors, L.P. v. SCP Capital, Inc. · filed 2012-12-05(a)(1)

In that regard, since the documentary evidence that the seller defendants SCP Capital, Inc., SCP 2009-C34, L.P., Landes Investments Group, Inc., and LLWG Capital, Inc. (hereinafter collectively the SCP defendants), submitted with their motion established that the plaintiff is not a licensed real estate broker in Florida or Texas, the plaintiff may not recover a real estate brokerage commission with respect to each of the transactions at issue under the laws of Florida and Texas, respectively (see Fla Stat Ann § 475.41; Tex Occ Code § 1101.806 [b] [1]). Accordingly, the Supreme Court properly granted that branch of the SCP defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the first cause of action insofar as asserted against them based on a defense founded upon documentary evidence.

On a motion to dismiss based on documentary evidence, an incomplete document whose reliability is in question does not satisfy the movant’s burden.

Padernacht v. Doe · filed 2012-12-10(a)(1)

Overlooking these infirmities, the document is insufficient as a matter of law for respondent to sustain its burden. ... As an incomplete document, its reliability is in question and will not be considered by this court.