N.Y. C.P.L.R. § 3211

Under subsection (a)(1), affidavits are not documentary evidence supporting a motion to dismiss.

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

Because the affidavits are not documentary evidence as contemplated by CPLR 3211 (a) (1) (see Lopes v Bain, 82 AD 3d 1553, 1554 [2011]), the issue devolves to whether the asset purchase agreement conclusively establishes that Main Brothers is not subject to successor liability.

A contract does not support dismissal under subsection (a)(1) unless it conclusively refutes the plaintiff’s allegations.

Guido v. Orange Regional Medical Center · filed 2013-01-23(a)(1)

However, the court properly denied that branch of the motion which was pursuant to CPLR 3211 (a) (1) to dismiss the second cause of action, since the severance agreement did not conclusively refute the plaintiffs claims with respect to OMRC’s breach of contract.

A motion to dismiss based on documentary evidence requires proof that conclusively establishes a defense as a matter of law.

AGCS Marine Insurance v. Scottsdale Insurance · filed 2013-01-30(a)(1)

In support of its motion, the defendant failed to present documentary evidence conclusively establishing a defense as a matter of law. Accordingly, the Supreme Court properly denied the defendant’s motion.

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

Fucile v. L.C.R. Development, Ltd. · filed 2013-01-30(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 plaintiff’s claim” (Sato Constr. Co., Inc. v 17 & 24 Corp., 92 AD3d 934, 935 [2012]; 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]).

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

Bank of America v. Keso Sagg, LLC · filed 2013-02-06(a)(1)

A CPLR 3211 (a) (1) motion to dismiss based on 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., 98 NY2d 314, 326 [2002]; see Suchmacher v Manana Grocery, 73 AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

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

Bank of America v. Keso Sagg, LLC · filed 2013-02-06(a)(1)

Here, the plaintiff, Bank of America, N.A., by its submission of, inter alia, the operating agreements of the defendants Keso Sagg, LLC, and Keso Sagg 2, LLC (hereinafter together the appellants), utterly refuted the appellants’ allegation that it knew or should have known that their managing member lacked actual authority to mortgage the appellants’ property. Accordingly the Supreme Court properly directed the dismissal of the appellants’ counterclaims and affirmative defenses pursuant to CPLR 3211 (a) (1).

A motion under § 3211(a)(1) may be granted only when documentary evidence conclusively establishes a defense as a matter of law.

Natoli v. NYC Partnership Housing Development Fund Co. · filed 2013-02-06(a)(1)

A CPLR 3211 (a) (1) motion may be 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]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Midorimatsu, Inc. v Hui Fat Co., 99 AD3d 680 [2012]).

Section 3211(a)(1) requires documentary evidence to conclusively establish the asserted defense before a claim may be dismissed.

Stidolph v. 771620 Equities Corp. · filed 2013-02-13(a)(1)

The Supreme Court properly denied that branch of the defendants’ cross motion which was to dismiss the fifth cause of action. The documentary evidence upon which the defendants relied to demonstrate a defense of mootness, by showing that they duly credited the plaintiff with SCRIE payments, only shows a partial credit, and, therefore, does not conclusively establish that defense (see generally Green v Gross & Levin, LLP, 101 AD3d 1079 [2012]).

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

THIRTY ONE DEVELOPMENT, LLC v. COHEN, JEFFREY · filed 2013-03-15(a)(1)

“On a motion to dismiss pursuant to CPLR 3211, the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [internal quotation marks omitted]).

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

North Shore Towers Apartments Inc. v. Three Towers Associates · filed 2013-03-20(a)(1)

A motion to dismiss based on documentary evidence 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 Norment v Interfaith Ctr. of N.Y., 98 AD3d 955, 955-956 [2012]). ... Accordingly, the Supreme Court should have denied those branches of the sponsor’s motion which were to dismiss the first, second, and fourth causes of action pursuant to CPLR 3211 (a) (1).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes that a claim cannot be maintained against the defendant.

Patel v. American University of Antigua · filed 2013-03-21(a)(1)

In this action for personal injuries allegedly suffered by plaintiff when he slipped and fell on defendant American University of Antigua’s (AUA) campus, that portion of defendants’ motion seeking dismissal of the complaint as against defendant GCLR, LLC should have been granted pursuant to CPLR 3211 (a) (1) since the documentary evidence establishes that a cause of action for negligence cannot be maintained against GCLR.

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

Faith Assembly v. Titledge of New York Abstract, LLC · filed 2013-03-27(a)(1)

However, contrary to Stewart’s contention, this does not entitle it to dismissal of these causes of action, because the language of the underwriting agreement does not conclusively establish that Titledge was not authorized to enter into the escrow agreement as Stewart’s agent.

Section 3211(a)(1) does not support dismissal based on a deed when the complaint sufficiently alleges a violation of a restrictive covenant in that deed.

Faler v. Haines · filed 2013-03-28(a)(1)

We now reverse. In support of dismissal pursuant to CPLR 3211 (a) (1), the only documentary evidence that defendants rely upon is their deed containing the restrictive covenants. ... We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant.

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.

Morpheus Capital Advisors LLC v. AG · filed 2013-03-12(a)(1)

A motion to dismiss premised 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” (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, while defendants aver that the creation of the Fund frustrated the purpose of the agreement, they nevertheless fail to establish that defense with documentary evidence.

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

Great Eagle International Trade, Ltd. v. Corporate Funding Partners, LLC · filed 2013-03-13(a)(1)

The Supreme Court correctly determined that the draft letter of credit submitted in support of the appellants’ motion to dismiss the complaint insofar as asserted against them did not represent a contract between the plaintiffs and any of the appellants, and was insufficient to conclusively establish as a matter of law a defense to the asserted claims (see Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]; CPLR 3211 [a] [1]).

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.

Bibbo v. 31-30, LLC · filed 2013-04-10(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1) “on the ground that the action is barred by documentary evidence, such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) does not permit dismissal when the documentary evidence leaves factual issues unresolved and does not conclusively dispose of the claims.

Citidress II Corp. v. Tokayer · filed 2013-04-10(a)(1)

The Supreme Court should not have directed the dismissal of the causes of action based on legal malpractice and breach of contract pursuant to CPLR 3211 (a) (1). The documentary evidence submitted did not resolve all factual issues as a matter of law, and did not conclusively dispose of the claims asserted by the plaintiff (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-591 [2005]; McCue v County of Westchester, 18 AD3d 830, 831 [2005]).

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

Yue Fung USA Enterprises, Inc. v. Novelty Crystal Corp. · filed 2013-04-10(a)(1)

Dismissal pursuant to 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 (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Yellow Book Sales & Distrib. Co., Inc. v Hillside Van Lines, Inc., 98 AD3d 663 [2012]).

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.

Siracusa v. Sager · filed 2013-04-17(a)(1)

Initially, we agree with the plaintiff’s contention that the Horn defendants did not establish their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211 (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”

A motion to dismiss based on a defense founded on documentary evidence must be decided solely on the documents submitted in support; testimony from a hearing cannot establish entitlement to dismissal.

Furman v. Wells Fargo Home Mortgage, Inc. · filed 2013-04-10(a)(1)

It was unnecessary for the Supreme Court to hold in abeyance those branches of Wells Fargo’s motion which were to dismiss the specific performance and breach of contract causes of action pending a hearing, since no testimony adduced at such a hearing could properly be relied upon in determining whether Wells Fargo established its entitlement to dismissal of the these causes of action pursuant to CPLR 3211 (a) (1).

A motion to dismiss under CPLR 3211(a)(1) based on a documentary evidence defense must be decided solely on the documents submitted in support of the motion.

Furman v. Wells Fargo Home Mortgage, Inc. · filed 2013-04-10(a)(1)

We further note that since Wells Fargo sought dismissal of the specific performance and breach of contract causes of action pursuant to CPLR 3211 (a) (1) on the ground that it had a defense founded on documentary evidence, the motion should have been decided solely on the documentary evidence proffered in support of the motion.

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

Abdulayev v. Yadgarov · filed 2013-04-17(a)(1)

To the extent that the evidence submitted by the defendants constituted “documentary evidence” within the meaning of CPLR 3211 (a) (1), such evidence failed to utterly refute the allegations of the complaint and did not conclusively establish a defense as a matter of law (see Jones v Rochdale Vil., Inc., 96 AD3d 1014, 1017 [2012]).

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

Hunt v. Raymour & Flanigan · filed 2013-04-24(a)(1)

On a motion to dismiss a 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 83, 88 [1994]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

CT Investment Management Co. v. Chartis Specialty Insurance · filed 2013-05-03(a)(1)

Further, where the defendant seeks to dismiss the complaint based upon documentary evidence, the motion will succeed if “the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law.”

Section 3211(a)(1) does not permit dismissal when the submitted evidence fails to utterly refute the complaint’s allegations.

Pasquaretto v. Long Island University · filed 2013-05-08(a)(1)

Moreover, the evidence fails to utterly refute the plaintiffs allegations regarding the University defendants’ negligence. Consequently, the Supreme Court should not have directed dismissal of the complaint pursuant to CPLR 3211 (a) (1).

A motion under CPLR 3211(a)(1) succeeds when the defendant’s documentary evidence conclusively establishes a defense as a matter of law.

Stuart v. Robert L. Folks & Associates, LLP · filed 2013-05-08(a)(1)

To succeed on a motion to dismiss a complaint 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]; see Guayara v Harry I. Katz, P.C., 83 AD3d at 662). ... Applying these standards to the instant case, the Supreme Court properly directed the dismissal of the legal malpractice cause of action.

CPLR 3211(a)(1) requires denial of a motion to dismiss when the submitted documents support the plaintiff’s allegations rather than conclusively establish a defense.

Jackson v. Bank of America, N.A. · filed 2013-05-21(a)(1)

As stated above, the court finds that the documentary evidence submitted by defendant supports plaintiffs’ claims, rather than establishing a defense. ... Defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) must be denied.

CPLR 3211(a)(1) does not permit dismissal when the documentary evidence fails to conclusively establish a defense as a matter of law.

Schottland v. Brown Harris Stevens Brooklyn, LLC · filed 2013-06-05(a)(1)

However, the plaintiffs sufficiently pleaded a cause of action against the Netzer defendants alleging breach of the covenant against grantor’s acts, and the documentary evidence submitted by the Netzer defendants does not conclusively establish a defense to that cause of action as a matter of law.

Under CPLR 3211(a)(1), documents that establish a defense to a claim as a matter of law may support dismissal.

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire · filed 2013-05-16(a)(1)

The court properly considered the documents submitted pursuant to CPLR 3211 (a) (1) in concluding that they establish a defense to the malpractice counterclaim as a matter of law, as they show that Longmire would not have prevailed on any claim of race-based termination in the underlying federal suit (Leon v Martinez, 84 NY2d 83, 88 [1994]; IMO Indus. v Anderson Kill & Olick, 267 AD2d 10, 11 [1st Dept 1999]).

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.

Treeline 990 Stewart Partners, LLC v. RAIT Atria, LLC · filed 2013-06-12(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 Green v Gross & Levin, LLP, 101 AD3d 1079, 1080-1081 [2012]; Bodden v Kean, 86 AD3d 524, 526 [2011]). Contrary to the RAIT defendants’ contentions, the documentary evidence that they submitted did not conclusively establish, as a matter of law, a defense to the breach of contract cause of action insofar as asserted against RAIT Atria.

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

Shuttle Contracting Corp. v. Peikarian · filed 2013-07-03(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]).

On a CPLR 3211(a)(1) motion, documentary evidence must conclusively refute the plaintiff’s allegations to warrant dismissal.

J.P. Morgan Securities Inc. v. Vigilant Insurance · filed 2013-06-11(a)(1)

And to prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), the moving party (here, the Insurers) must establish that the documentary evidence “conclusively refutes” the plaintiffs allegations (AG Capital Funding, 5 NY3d at 591).

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

Regini v. Board of Managers of Loft Space Condominium · filed 2013-06-13(a)(1)

Nor does the affidavit submitted by SDS constitute documentary evidence within the meaning of CPLR 3211 (a) (1) (see Flowers v 73rd Townhouse LLC, 99 AD3d 431 [1st Dept 2012]).

A motion to dismiss based on documentary evidence succeeds only if that evidence conclusively establishes a defense as a matter of law.

Palmieri v. Biggiani · filed 2013-07-10(a)(1)

“To succeed on a motion to dismiss [a complaint] 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”

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

White Plains Plaza Realty, LLC v. Cappelli Enters. Inc. · filed 2013-07-10(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint or petition on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s or petitioner’s 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 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.

Minovici v. BV · filed 2013-08-14(a)(1)

A motion to dismiss a complaint based on documentary evidence pursuant to CPLR 3211 (a) (1) may only be granted “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]; see Rabos v R&R Bagels & Bakery, Inc., 100 AD3d at 851).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes a cause of action.

Mosbacher v. JP Morgan Chase Bank, N.A. · filed 2013-08-14(a)(1)

Furthermore, the documentary evidence utterly refutes the cause of action alleging that the defendant breached the covenant of good faith and fair dealing implied in the credit agreement (see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) does not allow dismissal when documentary evidence fails to utterly refute the complaint’s allegations.

Constructamax, Inc. v. Weber · filed 2013-08-21(a)(1)

Here, the defendant’s documentary evidence does not utterly refute the factual allegations of the amended complaint. Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the amended complaint based on documentary evidence.

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

Gomez v. Fidelity National Title Insurance · filed 2013-08-28(a)(1)

The documentary evidence submitted resolved all factual issues as a matter of law, and conclusively disposed of the claim asserted by the plaintiff (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 930 [2010]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006]; Nevin v Laclede Professional Prods., 273 AD2d 453 [2000]).

A release that does not conclusively dispose of the plaintiff’s claims cannot support dismissal under CPLR 3211(a)(1).

Burnside 711 LLC v. Amerada Hess Corp. · filed 2013-09-18(a)(1)

Thus, the Supreme Court erred in granting the defendant’s motion to dismiss the complaint on the basis of the releases pursuant to CPLR 3211 (a) (5). Moreover, inasmuch as the releases did not “conclusively dispose” of the plaintiff’s claims (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]), the Supreme Court likewise erred in granting that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) (see Great Eagle Intl. Trade, Ltd. v Corporate Funding Partners, LLC, 104 AD3d 731, 731 [2013]; Midorimatsu, Inc. v Hui Fat Co., 99 AD3d 680, 681-682 [2012]).

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

Stathakos v. Metropolitan Transit Authority Long Island Railroad · filed 2013-09-25(a)(1)

Here, even assuming that the purchase of the monthly commutation tickets created an obligation on the part of the defendant to provide train service, the documentary evidence submitted by the defendant, in the form of tariff schedules undisputedly in effect at all relevant times, conclusively established a defense as a matter of law to the allegations of breach of contract. ... Inasmuch as the tariff schedules established that the defendant did not breach any contractual obligation by failing to issue a credit or refund for the cancelled train service, that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint was properly granted.

Section 3211(a)(1) permits dismissal when a lease’s unambiguous terms contradict the allegations supporting a claim.

Toys "R" Us-Delaware, Inc. v. 44-45 Broadway Realty Co. · filed 2013-10-17(a)(1)

The terms of the subject lease unambiguously contradict the allegations supporting plaintiff’s claims, thereby warranting dismissal of the complaint pursuant to CPLR 3211 (a) (1) (see 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 5 [1st Dept 2004]).

A verified bill of particulars is not documentary evidence that supports dismissal under CPLR 3211(a)(1).

D'Auvergne v. Dis Is We Thing, Inc. · filed 2013-10-23(a)(1)

The Supreme Court properly determined that the Persaud defendants were not entitled to dismissal pursuant to CPLR 3211 (a) (1), as the verified bill of particulars did not constitute documentary evidence within the meaning of this section (see Summer v Severance, 85 AD3d 1011, 1012 [2011]; Treeline 1 OCR, LLC v Nassau County Indus. Dev. Agency, 82 AD3d 748 [2011]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; IMO Indus. v Anderson Kill & Olick, 267 AD2d 10 [1999]).

Section 3211(a)(1) permits dismissal when integrated loan documents flatly contradict the pleaded claims.

VFS Financing v. Insurance Services Corp. · filed 2013-11-14(a)(1)

The integrated loan documents associated with the one-time transfer of funds to defendants in May 2006 flatly contradict defendants’ counterclaims and third-party claims of fraud in the inducement, breach of contract, tortious interference with contract, mutual mistake (reformation), and breach of the duty of good faith and fair dealing (see CPLR 3211 [a] [1]; Zanett Lombardier, Ltd. v Maslow, 29 AD3d 495 [1st Dept 2006]).

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

PRESTIGIACOMO, ANDREW v. AMES, JUNE N. · filed 2013-11-15(a)(1)

Contrary to plaintiff’s contention, we conclude that Supreme Court properly granted defendants’ motion inasmuch as it was based on documentary evidence, i.e., a deed, conclusively establishing a defense to plaintiff’s complaint as a matter of law (see CPLR 3211 [a] [1]; Thirty One Dev., LLC v Cohen, 104 AD3d 1195, 1196; see generally Camperlino v Town of Manlius Mun. Corp., 78 AD3d 1674, 1676, lv dismissed 17 NY3d 734; Blangiardo v Horstmann, 32 AD3d 876, 879, lv dismissed 8 NY3d 939).

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

Prestigiacomo v. Ames · filed 2013-11-15(a)(1)

Contrary to plaintiffs contention, we conclude that Supreme Court properly granted defendants’ motion inasmuch as it was based on documentary evidence, i.e., a deed, conclusively establishing a defense to plaintiffs complaint as a matter of law (see CPLR 3211 [a] [1]; Thirty One Dev., LLC v Cohen, 104 AD3d 1195, 1196 [2013]; see generally Camperlino v Town of Manlius Mun. Corp., 78 AD3d 1674, 1676 [2010], lv dismissed 17 NY3d 734 [2011]; Blangiardo v Horstmann, 32 AD3d 876, 879 [2006], lv dismissed 8 NY3d 939 [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.

Encore Lake Grove Homeowners Ass'n v. Cashin Associates · filed 2013-11-27(a)(1)

The Supreme Court improperly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action, which alleged breach of contract, based upon documentary evidence. ... Contrary to the defendant’s contention, the documentary evidence in the record does not conclusively establish as a matter of law that the plaintiffs were not third-party beneficiaries of the resolution dated November 3, 2005.

CPLR 3211(a)(7) requires allegations to be accepted as true and liberally construed, while CPLR 3211(a)(1) permits documentary evidence to defeat claims only when it is admissible, eliminates material factual disputes, and completely negates the allegations.

Smith v. New York City Housing Authority · filed 2013-12-20(a)(1), (a)(7)

As defendant concedes, however, upon its motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), the court must accept plaintiff’s allegations as true, liberally construe them, and draw all reasonable inferences in her favor. (Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 484 [2009]; Nonnon v City of New York, 9 NY3d at 827; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Wadiak v Pond Mgt., LLC, 101 AD3d 474, 475 [1st Dept 2012].) Upon defendant’s motion pursuant to CPLR 3211 (a) (1), the court may rely on facts raised by defendant to defeat plaintiffs claims only if established by evidence in admissible documentary form, demonstrating the absence of any material dispute regarding those facts, and completely negating her allegations against defendant. (Lawrence v Graubard Miller, 11 NY3d at 595; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Greenapple v Capital One, N.A., 92 AD3d 548, 550 [1st Dept 2012].)

Affidavits are not documentary evidence under CPLR 3211(a)(1), so affidavits alone cannot support dismissal on documentary evidence grounds.

Rodolico v. Rubin & Licatesi, P.C. · filed 2013-12-04(a)(1)

Here, the only evidence submitted by the defendants that pertained to the legal malpractice cause of action were affidavits. Accordingly, since the defendants failed to support the branch of their motion seeking to dismiss the legal malpractice cause of action pursuant to CPLR 3211 (a) (1) with “documentary” evidence, it was properly denied (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Fontanetta v John Doe 1, 73 AD3d at 86).

A motion to dismiss under section 3211(a)(1) must be supported by documentary evidence; affidavits do not qualify.

Rodolico v. Rubin & Licatesi, P.C. · filed 2013-12-04(a)(1)

The evidence submitted in support of a motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “must be documentary or the motion must be denied” (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010] [internal quotation marks omitted]).

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.

Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo · filed 2014-01-08(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, “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 conclusively establishes that the parties agreed to arbitrate the dispute.

Katz v. Katz · filed 2014-01-08(a)(1)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint. The documentary evidence submitted by the defendants conclusively established as a matter of law that the parties had agreed to submit any dispute arising out of the operation of the partnership to arbitration before an orthodox Jewish Beth Din (see CPLR 3211 [a] [1]; Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor, 67 NY2d 997, 998-999 [1986]; Rudolph & Beer v Roberts, 260 AD2d 274, 276 [1999]; Ticker v Trager, 106 AD2d 443, 443-444 [1984]).

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

Louzoun v. Kroll Moss & Kroll, LLP · filed 2014-01-08(a)(1)

Documentary evidence may entitle a defendant to the dismissal of a complaint pursuant to CPLR 3211 (a) (1), but only where such evidence “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 only when documentary evidence utterly refutes the factual allegations and conclusively establishes a defense as a matter of law.

In re Lynch · filed 2014-01-08(a)(1)

Under CPLR 3211 (a) (1), dismissal may be appropriately granted only where the documentary evidence utterly refutes the 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 Williams v Williams, 36 AD3d 693 [2007]).

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

URS Corp. v. Zurich American Insurance · filed 2014-01-16(a)(1)

Dismissal on the basis of documentary evidence, per CPLR 3211 (a) (1), is warranted only where such evidence “conclusively establishes a defense to the asserted claims as a matter of law” (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

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

BAUMANN REALTORS, INC. v. FIRST COLUMBIA CENTURY-30, LLC · filed 2014-01-03(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence “resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” (Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550, lv denied 20 NY3d 861 [internal quotation marks omitted]).

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

Rockitter v. Rockitter · filed 2014-01-22(a)(1)

Accordingly, contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) on the ground that a complete defense to the action was founded on documentary evidence (see CPLR 3211 [a] [1]).

On a CPLR 3211 motion, documentary evidence that refutes allegations of causation can support dismissal of a legal malpractice claim.

Herschman v. Kern, Augustine, Conroy & Schoppman · filed 2014-01-23(a)(1)

The documentary evidence submitted by defendants on their CPLR 3211 motion refutes plaintiff’s allegations, by showing that any purported negligence on their part in connection with the administrative proceedings or any advice with respect to plaintiffs method of billing Medicare for Levoritz’s services did not proximately cause plaintiff’s arrest.

Deposition testimony is not documentary evidence that can support dismissal under CPLR 3211(a)(1).

JP Morgan Chase Bank, N.A. v. Balliraj · filed 2014-01-29(a)(1)

The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]).

Affidavits and emails from company personnel do not qualify as documentary evidence for a motion to dismiss under CPLR 3211(a)(1).

United States Fire Insurance v. North Shore Risk Management · filed 2014-02-04(a)(1)

North Shore’s CPLR 3211 motion to dismiss US Fire’s complaint was properly denied, as the documentary evidence, i.e., the affidavits and emails of North Shore and Inter-Reco personnel, do not qualify as “documentary evidence” for purposes of CPLR 3211 (a) (1) (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Rodolico v Rubin & Licatesi, P.C., 112 AD3d 608, 610 [2d Dept 2013]).

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

Rodolico v. Rubin & Licatesi, P.C. · filed 2014-02-26(a)(1)

The only other evidence submitted by the defendants pertaining to these causes of action as well as the legal malpractice cause of action was affidavits, which dp not constitute “ ‘documentary evidence within the intendment of CPLR 3211 (a) (1)’ ” (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting Granada Condominium III Assn. v Palomino, 78 AD3d at 997; see Rodolico v Rubin & Licatesi, P.C., 112 AD3d at 610).

A motion to dismiss under CPLR 3211(a)(1) based on a documentary defense must be supported by documentary evidence.

Rodolico v. Rubin & Licatesi, P.C. · filed 2014-02-26(a)(1)

Further, the evidence submitted in support of a motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “must be documentary or the motion must be denied” (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010] [internal quotation marks omitted]; see Rodolico v Rubin & Licatesi, P.C., 112 AD3d at 610).

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

Kalikow v. Shalik · filed 2014-02-26(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 defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Basalel v Youni Gems Corp., 95 AD3d 914, 915 [2d Dept 2012]; First Keystone Consultants, Inc. v DDR Constr. Servs., 74 AD3d 1135 [2d Dept 2010]).

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

11 King Center Corp. v. City of Middletown · filed 2014-03-19(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” (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, the city defendants’ documentary evidence conclusively established, as a matter of law, that the plaintiff corporation was not the owner of record of the subject property.

CPLR 3211(a)(1) permits dismissal when documentary evidence flatly contradicts the claims.

Xi Mei Jia v. Intelli-Tec Security Services, Inc. · filed 2014-02-27(a)(1)

Intelli-Tec and MacDonnell were entitled to dismissal of the complaint as the documentary evidence flatly contradicts both causes of action (see CPLR 3211 [a] [1]; Maas v Cornell Univ., 94 NY2d 87 [1999]).

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.

Colantonio v. Mercy Medical Center · filed 2014-03-26(a)(1)

Upon renewal, the defendants similarly failed to establish their entitlement to dismissal pursuant to CPLR 3211 (a) (1), based on the common-interest privilege. “A CPLR 3211 (a) (1) motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Jesmer v Retail Magic, Inc., 55 AD3d 171, 180 [2008] [internal quotation marks omitted]).

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

New York State Workers' Compensation Board v. SGRisk, LLC · filed 2014-04-03(a)(1)

Letters submitted by SGRisk are not sufficient documentary evidence to mandate dismissal (see CPLR 3211 [a] [1]), as they do not “utterly refute[ ] 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]; accord Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011]; see Health Acquisition Corp. v Program Risk Mgt., Inc., 105 AD3d at 1004).

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.

Benetech, Inc. v. Omni Financial Group, Inc. · filed 2014-04-10(a)(1)

Dismissal of a complaint under CPLR 3211 (a) (1) is appropriate “where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (State Farm Fire & Cas. Co. v Main Bros. Oil Co., 101 AD3d 1575, 1576-1577 [2012] [internal quotation marks and citations omitted]).

CPLR 3211 (a) (1) permits dismissal based on documentary evidence only when it refutes the plaintiff’s factual allegations or conclusively disposes of the claim as a matter of law.

Schiller v. Bender, Burrows & Rosenthal, LLP · filed 2014-04-09(a)(1)

A motion to dismiss on the basis of CPLR 3211 (a) (1) should be granted only where the documentary evidence that forms the basis of the defense is such that it refutes the plaintiffs factual allegations or conclusively disposes of the plaintiffs claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]).

Under subsection (a)(1), affidavits do not qualify as documentary evidence, and a document must conclusively establish a defense to warrant dismissal.

Wang v. Diamond Hill Realty, LLC · filed 2014-04-09(a)(1)

Here, the affidavits submitted by New York Food were not proper documentary evidence, and its submission of the stipulation of settlement between Diamond Hill and the purported holdover tenant failed to conclusively establish that it was not in possession of the premises at the time of the accident.

Under CPLR 3211 (a) (1), affidavits do not qualify as documentary evidence supporting dismissal.

Wang v. Diamond Hill Realty, LLC · filed 2014-04-09(a)(1)

Contrary to New York Food’s contention, affidavits do not qualify as “documentary evidence” for purposes of a motion to dismiss pursuant to CPLR 3211 (a) (1) (see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807 [2012]; Fontanetta v John Doe 1, 73 AD3d at 85-86; 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 that evidence conclusively establishes a defense as a matter of law.

Plaintiffs' State & Securities Law Settlement Class Counsel v. Bank of New York Mellon · filed 2014-04-15(a)(1)

When documentary evidence under CPLR 3211 (a) (1) is considered, “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), evidence supports dismissal only if it utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

Infra-Metals Co. v. Metro Structural Steel, Inc. · filed 2014-04-16(a)(1)

Contrary to the defendants’ contention, the evidence they submitted in support of that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) did not “utterly refute[ ] [the] plaintiffs factual allegations, conclusively establishing a defense as a matter of law” ... Accordingly, that branch of their motion was properly denied.

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

Atlantic Capital Realty v. Cayuga Capital Management, LLC · filed 2014-04-23(a)(1)

Here, even assuming that the documents relied upon by the defendants in support of that branch of their motion which seeks dismissal pursuant to CPLR 3211 (a) (1) qualify as documentary evidence (see Fontanetta v John Doe 1, 73 AD3d 78 [2010]), they do not “utterly refute” the factual allegations asserted in the complaint.

Section 3211(a)(1) permits dismissal when documentary evidence, including a judicial record, conclusively establishes a complete defense.

Flushing Expo, Inc. v. New World Mall, LLC · filed 2014-04-16(a)(1)

Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) on the ground that documentary evidence, in the form of a “judicial record” (Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010], citing Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-22), constituted a complete defense to the action.

Section 3211(a)(1) does not treat deposition transcripts as documentary evidence supporting dismissal.

Leading Insurance Group Insurance v. Greenwich Insurance · filed 2014-04-17(a)(1)

Deposition transcripts are not “documentary evidence” for purposes of CPLR 3211 (a) (1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept 2012]); and, assuming that deposition testimony is admissible on a motion pursuant to CPLR 3211 (a) (7) for “fail[ure] to state a cause of action” (see Quiroz v Zottola, 96 AD3d 1035, 1037-1038 [2d Dept 2012]), the deposition testimony submitted here does not demonstrate that no significant dispute exists with respect to any pleaded fact (see id. at 1037).

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.

Greenberg v. Blake · filed 2014-05-07(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted if “documentary evidence utterly refutes [the] plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law” (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]). Here, the documentary evidence utterly refutes the allegations of notary misconduct as set forth in the second cause of action.

Under CPLR 3211(a)(1), affidavits and deposition testimony do not qualify as documentary evidence supporting dismissal.

In re Walker · filed 2014-05-14(a)(1)

The Surrogate’s Court should not have considered an affidavit and a transcript of deposition testimony submitted by LIU in determining whether the petition should have been dismissed, as neither qualifies as documentary evidence (see Fontanetta v John Doe 1, 73 AD3d at 85; Berger v Temple Beth-El of Great Neck, 303 AD2d at 347).

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.

Neckles Builders, Inc. v. Turner · filed 2014-05-21(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, conclusively establishing a defense to the claims as a matter of law (see Robertson v Wells, 95 AD3d at 863).

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.

Hasson v. S.B.J. Associates, LLC · filed 2014-05-21(a)(1)

Further, the documentary evidence submitted in support of the appellants’ motion to dismiss the fourth amended complaint insofar as asserted against them did not utterly refute the plaintiffs’ allegations, and did not conclusively establish defenses as a matter of law to any of the causes of action asserted in the fourth amended complaint (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Magnus v Sklover, 95 AD3d 837 [2012]). Accordingly, the Supreme Court properly denied those branches of the appellants’ motion which were pursuant to CPLR 3211 (a) (1), (5), and (7) to dismiss the first through fourth causes of action of the fourth amended complaint insofar as asserted against them.

A motion to dismiss based on documentary evidence succeeds only when the evidence conclusively establishes a defense and resolves all factual issues as a matter of law.

Hyde Park Owners Corp. v. Kew Gardens Tenants League · filed 2014-06-04(a)(1)

To succeed on a motion to dismiss based upon documentary evidence (see CPLR 3211 [a] [1]), the documentary evidence must conclusively establish a defense to the asserted claims and resolve all factual issues as a matter of law (see Palmieri v Biggiani, 108 AD3d 604, 606-607 [2013]; Sunset Cafe, Inc. v Mett’s Surf & Sports Corp., 103 AD3d 707, 709 [2013]; Springer v Almontaser, 75 AD3d 539, 540 [2010]; Rubinstein v Salomon, 46 AD3d 536, 539 [2007]).

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

Zellner v. Odyl, LLC · filed 2014-05-28(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 defendant utterly refutes the factual allegations of the complaint, conclusively establishing a defense to the asserted claims 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).

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

Tanenbaum v. Molinoff · filed 2014-06-11(a)(1)

“A motion to dismiss on the basis of CPLR 3211 (a) (1) should be granted only where the documentary evidence that forms the basis of the defense is such that it refutes the plaintiffs factual allegations or conclusively disposes of the plaintiffs claims as a matter of law” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [2014]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]).

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

Waterfront Joints, Inc. v. Tarrytown Boat Club, Inc. · filed 2014-07-02(a)(1)

The Supreme Court also properly directed the dismissal of the fourth cause of action, which alleged breach of contract, pursuant to CPLR 3211 (a) (1). ... Here, the documentary evidence submitted by the defendant conclusively refuted the plaintiffs claim that the defendant had breached its agreement to enter into a new lease with the plaintiff.

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

SPOLETA CONSTRUCTION, LLC v. ASPEN INSURANCE UK LIMITED · filed 2014-07-11(a)(1)

We therefore agree with plaintiff that the court erred in dismissing the complaint against defendant inasmuch as the documentary evidence does not conclusively establish a defense to plaintiff’s claim as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324; Leon v Martinez, 84 NY2d 83, 87-88).

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

Waterfalls Italian Cuisine, Inc. v. Tamarin · filed 2014-07-16(a)(1)

“A motion to dismiss based on documentary evidence may be granted only where such documentary evidence utterly refutes the plaintiffs factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue” (Yue Fung USA Enters., Inc. v Novelty Crystal Corp., 105 AD3d 840, 841 [2013] [citations omitted]). ... Accordingly, the Supreme Court should have denied that branch of Venetian’s cross motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it.

A defendant’s own affidavit is not documentary evidence that can support dismissal under CPLR 3211(a)(1).

New York Workers' Compensation Board v. Madden · filed 2014-07-03(a)(1)

In this regard, Belgraier submitted her own affidavit refuting plaintiffs allegations; however, such an affidavit does not constitute documentary evidence upon which a proponent of dismissal pursuant to CPLR 3211 (a) (1) may rely (see State Farm Fire & Cas. Co. v Main Bros. Oil Co., 101 AD3d 1575, 1577 n 3 [2012]; Crepin v Fogarty, 59 AD3d 837, 838 [2009]).

Under § 3211(a)(1), documentary evidence must conclusively establish a defense to support pre-answer dismissal.

Lezama v. Cedano · filed 2014-07-17(a)(1)

Moreover, pursuant to CPLR 3211 (a) (1), we find that the purported documentary evidence submitted by defendant BNY in support of the motion to dismiss is insufficient to conclusively establish as a matter of law that the subject property was not abandoned.

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.

Air & Power Transmission, Inc. v. Weingast · filed 2014-08-13(a)(1)

The Supreme Court properly directed the dismissal of the causes of action to recover damages for fraud, breach of fiduciary duty, and negligence pursuant to CPLR 3211 (a) (1).

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

Hedgepeth v. Christensen · filed 2014-07-30(a)(1)

“A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the ‘documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’ ” (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010], quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Guido v Orange Regional Med. Ctr., 102 AD3d 828, 830 [2013]).

Under CPLR 3211(a)(1), a waiver does not warrant dismissal unless it utterly refutes the complaint’s factual allegations and conclusively establishes a defense as a matter of law.

Blum v. Rosenberg · filed 2014-08-13(a)(1)

Since the waiver does not utterly refute the factual allegations of the complaint and conclusively establish a defense to the claims asserted as a matter of law, dismissal of the complaint was inap...propriate pursuant to CPLR 3211 (a) (1) (see Kappa Dev. Corp. v Queens Coll. Point Holdings, LLC, 95 AD3d 1178, 1179 [2012]).

Section 3211(a)(1) does not treat factual affidavits as documentary evidence supporting dismissal.

Art & Fashion Group Corp. v. Cyclops Production, Inc. · filed 2014-08-28(a)(1)

Factual affidavits, however, do not constitute documentary evidence within the meaning of the statute (Flowers v 73rd Townhouse LLC, 99 AD3d 431, 431 [1st Dept 2012]).

Under section 3211(a)(1), emails can qualify as documentary evidence if their contents are essentially undeniable.

Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc. · filed 2014-08-28(a)(1)

In our electronic age, emails can qualify as documentary evidence if they meet the "essentially undeniable" test ( see Art and Fashion Group Corp. v Cyclops Prod., Inc. , __AD3d__, 2014 NY Slip Op__ [1st Dept 2014] [decided simultaneously herewith]; see also Langer v Dadabhoy , 44 AD3d 425 [1st Dept 2007], lv denied 10 NY3d 712 [2008]).

Under CPLR 3211(a)(1), documentary proof warrants dismissal if it disproves an essential allegation, even when the complaint otherwise states a claim.

Mill Financial, LLC v. Gillett · filed 2014-09-04(a)(1)

If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661 [2d Dept 2005]).

Evidence submitted to support dismissal for lack of standing must qualify as documentary evidence under CPLR 3211(a)(1).

US Bank, N.A. v. Morrison · filed 2014-09-10(a)(1)

The evidence the appellants submitted in support of this motion did not qualify as “documentary” within the meaning of CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010]), and was insufficient to demonstrate that the issue of standing could be determined as a matter of law (see CPLR 3211 [a] [3]; Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 1061, 1062 [2012]), or that the plaintiffs allegation that it had standing to commence this action was “not a fact at all” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see CPLR 3211 [a] [7]).

Under CPLR 3211(a)(1), affidavits, an attorney’s affirmation, and correspondence do not qualify as documentary evidence supporting dismissal.

Attias v. Costiera · filed 2014-09-17(a)(1)

Here, the affidavits submitted by the defendants, their attorney’s affirmation, and the correspondence that was submitted in support of the defendants’ motion did not constitute documentary evidence within the meaning of CPLR 3211 (a) (1), and should not have been relied upon by the Supreme Court in directing the dismissal of the complaint pursuant to CPLR 3211 (a) (1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 84-85).

Documentary evidence that conclusively refutes essential allegations can support dismissal under CPLR 3211(a)(1) and (7).

Coastal Purchasing Group, LLC v. JPMCC 2005-CIBC Collins Lodging, LLC · filed 2014-09-24(a)(1), (a)(7)

Moreover, the documentary evidence relied upon by the defendants, including a subordination, nondisturbance, and attornment agreement dated January 9, 2012, refuted the allegations in the complaint that JPMCC and the other defendants assented to be bound by the purchase option ... Thus, the defendants established that they were entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1) and (7).

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

Renaissance Equity Holdings, LLC v. Al-An Elevator Maintenance Corp. · filed 2014-10-01(a)(1)

Additionally, contrary to Al-An’s contention, the notice and opportunity to cure provision of the agreement did not conclusively establish a defense to this cause of action as a matter of law (see CPLR 3211 [a] [1]).

Section 3211(a)(1) does not support dismissal when the documentary evidence fails to conclusively refute the complaint’s factual allegations.

Randazzo v. Bank of New York Mellon Corp. · filed 2014-10-07(a)(1)

As we previously decided, this evidence failed to conclusively refute plaintiffs occupants’ factual pleadings alleging that defendant Domingo Cedano, owner of the multiple dwelling, had abandoned the premises within the meaning of Real Property Actions and Proceedings Law § 1307 (1) (see Lezama v Cedano, 119 AD3d 479 [1st Dept 2014]).

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

Biro v. Roth · filed 2014-10-08(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) on the ground that a defense is founded on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiffs factual allegations, conclusively establishing a defense as a matter of law” ... Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the complaint pursuant CPLR 3211 (a) (1).

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

WinervValentino · filed 2014-10-16(a)(1)

Accordingly, Supreme Court erroneously concluded that the contract, the specifications sheet and the certificate of assumed name that were proffered by defendants "utterly refute[d] 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 Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011]; Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]).

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

Connolly v. Certilman Balin Adler Hyman, LLP · filed 2014-11-19(a)(1)

Thus, the documentary evidence submitted by the defendants conclusively established a defense to this cause of action as a matter of law (see CPLR 3211 [a] [1]).

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.

Behar v. Glickenhaus Westchester Development, Inc. · filed 2014-11-19(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”

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

Stevens v. Perrigo · filed 2014-11-21(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, 84 NY2d at 88; see Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550 [2012], lv denied 20 NY3d 861 [2013]).

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

MarstonvGeneralElectricCompany · filed 2014-10-30(a)(1)

While URS also sought dismissal of the Jones Act claim pursuant to CPLR 3211 (a) (1), the affidavits it submitted do not constitute "documentary evidence" pursuant to that statute (see Matter of North Dock Tin Boat Assn., Inc. v New York State Off. of Gen. Servs., 96 AD3d 1186, 1189 n [2012]; Crepin v Fogarty, 59 AD3d 837, 838 [2009]).

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

Misek-Falkoff v. USAlliance Federal Credit Union · filed 2014-11-26(a)(1)

To the extent that the plaintiff asserted causes of action on her own behalf, certain loan agreements conclusively established a defense to those causes of action and, thus, dismissal of those portions of the complaint was appropriate pursuant to CPLR 3211 (a) (1).

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

Trask v. Tremper Property Ass'n · filed 2014-11-26(a)(1)

A motion under CPLR 3211 (a) (1) is properly granted “only where the documentary evidence 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 Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011]).

Section 3211(a)(1) permits dismissal when undisputed documentary evidence establishes that the defendant cannot be liable under the agreement sued upon.

Solco Plumbing Supply, Inc. v. Hart · filed 2014-12-10(a)(1)

Since the authenticity of the defendant’s documentary evidence that he no longer had an interest in Gotham at the time the debt was incurred is undisputed, the defendant’s motion to dismiss the complaint was properly granted.

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

Matter of Oliner v. Sovereign Bank · filed 2014-12-24(a)(1)

However, the documentary evidence submitted by the respondents established a complete defense to the proceeding (see CPLR 3211 [a] [1]), as it “utterly refute[d]” the petitioner’s factual allegations, “thereby conclusively establishing a defense as a matter of law” (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]).

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

Trask v. Tremper Property Ass'n · filed 2014-11-26(a)(1)

However, as the majority of these evidentiary items — including defendant’s undated meeting minutes and the unsigned 1987 amended bylaws — are not “unambiguous and of undisputed authenticity,” they do not provide a basis to dismiss the complaint (Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]).

CPLR 3211(a)(1) permits dismissal of a common-law indemnification claim when documentary evidence conclusively establishes that the defendant’s liability was not solely passive and vicarious.

Bivona v. Danna & Associates, P.C. · filed 2014-12-24(a)(1)

Thus, the documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

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

YDRA, LLC v. Mitchell · filed 2014-12-31(a)(1)

As to that branch of the motion of the defendant Paul Sklar which was pursuant to CPLR 3211 (a) (1), his submissions either were not “documentary evidence” within the meaning of CPLR 3211 (a) (1) or did not utterly refute the plaintiffs factual allegations, conclusively establishing a defense as a matter of law (see Fontanetta v John Doe 1, 73 AD3d at 83-86).

Under CPLR 3211(a)(1), an architect’s payment application does not support dismissal on limitations grounds when it does not conclusively establish the renovation’s completion date.

Barklee 94 LLC v. Oliver · filed 2015-01-15(a)(1)

Contrary to defendants’ contention, the architect’s application for payment does not conclusively establish that the renovation project was completed as of January 13, 2010, rendering this cause of action time-barred (see CPLR 3211 [a] [1]; Zanett Lombardier, Ltd. v Maslow, 29 AD3d 495 [1st Dept 2006]).

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.

MacKey Reed Electric, Inc. v. Morrone & Associates, P.C. · filed 2015-02-18(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” (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326).

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

City of New York v. VJHC Development Corp. · filed 2015-02-03(a)(1)

For example, Thomas’s and Vera’s affidavits, which say they had no knowledge that VJHC’s tenants were engaged in counterfeiting activity, do not qualify as documentary evidence for purposes of CPLR 3211 (a) (1) (United States Fire Ins. Co. v North Shore Risk Mgt., 114 AD3d 408, 409 [1st Dept 2014]).

A summary judgment motion does not become a CPLR 3211(a)(1) motion to dismiss merely because it relies on documentary evidence.

HSBC BANK USA, NATIONAL ASSOCIATION v. PRIME, L.L.C. · filed 2015-02-06(a)(1)

We reject at the outset defendants’ contention that Supreme Court should have treated plaintiff’s motion for summary judgment pursuant to CPLR 3212 as a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1). Contrary to defendants’ contention, the mere fact that plaintiff relies on documentary evidence, i.e., a forbearance agreement containing a release, in support of its motion does not alter the fact that it is a motion for summary judgment (see e.g. Bronson v Hansel, 16 NY3d 850, 851).

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

Clarke v. Laidlaw Transit, Inc. · filed 2015-02-25(a)(1)

The evidence that did qualify as documentary evidence did not conclusively establish that the defendant and FSM were alter egos within the meaning of the Workers’ Compensation Law (see Correa v Orient-Express Hotels, Inc., 84 AD3d 651, 651 [2011]; see also McDonald v Winter Bros. Transfer Sta. Corp., 120 AD3d 1315, 1315 [2014]; Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594, 595 [2010]; Hageman v B & G Bldg. Servs., LLC, 33 AD3d 860, 861 [2006]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the allegations.

Hyman v. Burgess · filed 2015-02-26(a)(1)

To the extent that plaintiff demanded the dismissal of defendant's counterclaims pursuant to CPLR 3211 (a) (1), we find that, because the record does not contain documentary evidence that "utterly refutes" defendant's allegations, Supreme Court properly denied plaintiff's motion on this particular ground (Mason v First Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) requires documentary evidence to utterly refute the plaintiff’s factual allegations or conclusively establish a defense before dismissal is warranted.

M.H. Mandelbaum Orthotic & Prosthetic Services, Inc. v. Werner · filed 2015-03-18(a)(1)

Here, the documentary evidence the appellant submitted in support of his motion did not utterly refute the plaintiffs factual allegations or conclusively establish a defense to the complaint insofar as asserted against him.

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

Brooklyn Historic Railway Ass'n v. City of New York · filed 2015-03-18(a)(1)

As the documentary evidence utterly refutes the plaintiffs’ allegations and establishes a defense as a matter of law, the branch of the motion which was to dismiss the fourth cause of action was properly granted (see CPLR 3211 [a] [1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the claim.

Hyman v. Schwartz · filed 2015-04-02(a)(1)

Moreover, contrary to her assertion, plaintiff did not submit documentary evidence utterly refuting this claim (see CPLR 3211 [a] [1]; see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; State of N.Y. Workers' Compensation Bd. v Madden, 119 AD3d 1022, 1026 [2014]).

A defendant's own affidavit is not documentary evidence supporting dismissal under CPLR 3211(a)(1).

New York State Workers' Compensation Board v. Consolidated Risk Services, Inc. · filed 2015-02-26(a)(1)

Contrary to his assertions, Bramwell cannot rely upon his own affidavit in seeking dismissal based on that provision – "such an affidavit does not constitute documentary evidence upon which a proponent of dismissal pursuant to CPLR 3211 (a) (1) may rely" (State of N.Y. Workers' Compensation Bd. v Madden, 119 AD3d 1022, 1029 [2014]; see State Farm Fire & Cas. Co. v Main Bros. Oil Co., 101 AD3d 1575, 1577 n 3 [2012]).

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.

Goodale v. Central Suffolk Hospital · filed 2015-03-04(a)(1)

Dismissal pursuant to CPLR 3211 (a) (1) may appropriately be granted only where the documentary evidence proffered in support of the motion utterly refutes the plaintiffs’ factual allegations, thus conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

Section 3211(a)(1) permits dismissal when an unambiguous written warranty defeats the complaint.

Board of Mgrs. of the A Bldg. Condominium v. 13th & 14th St. Realty, LLC · filed 2015-03-31(a)(1)

Even if Hydrotech’s motion to dismiss should not have been converted to a motion for summary judgment, dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (1), based on Hydrotech’s unambiguous Watertightness Warranty (see Four Seasons Hotels v Vinnik, 127 AD2d 310, 318 [1st Dept 1987]; see also 401 W. 14th St. Fee LLC v Mer Du Nord Noordzee, LLC, 34 AD3d 294, 295 [1st Dept 2006]).

Emails and other correspondence may qualify as documentary evidence on a motion to dismiss under CPLR 3211(a)(1).

Kolchins v. Evolution Markets, Inc. · filed 2015-04-02(a)(1)

Preliminarily, we reject Supreme Court's conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1).

CPLR 3211(a)(1) and (7) do not permit dismissal when documentary evidence fails to conclusively refute the plaintiff’s allegations and a significant factual dispute remains.

Vertical Progression, Inc. v. Canyon Johnson Urban Funds · filed 2015-03-11(a)(1), (a)(7)

The documentary evidence submitted by the Canyon defendants did not conclusively establish otherwise, and the totality of the evidence that they submitted did not establish that a fact alleged by Vertical was not a fact at all, or that there was no significant dispute regarding it. Accordingly, the Supreme Court should not have directed the dismissal of the causes of action alleging breach of contract, based on quantum meruit, and to recover on an account stated insofar as asserted against CJUF.

A motion under CPLR 3211(a)(1) must be denied when the submitted evidence does not qualify as documentary evidence or fails to utterly refute the plaintiff’s allegations and conclusively establish a defense.

25-01 Newkirk Avenue, LLC v. Everest National Insurance · filed 2015-04-08(a)(1)

Here, the evidence submitted by the defendant in support of the motion either did not constitute documentary evidence within the meaning of CPLR 3211 (a) (1), or failed to utterly refute the plaintiffs allegations or conclusively establish a defense as a matter of law, particularly with regard to whether the plaintiff was obligated to perform lead testing at the premises and whether the lead exclusion was validly added to the policy ... Accordingly, the Supreme Court should have denied the defendant’s motion.

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.

Jahan v. U.S. Bank National Ass'n · filed 2015-04-15(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss based on 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., 98 NY2d 314, 326 [2002]; see YDRA, LLC v Mitchell, 123 AD3d 1113 [2014]).

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

Lindbergh v. SHLO 54, LLC · filed 2015-05-06(a)(1)

Furthermore, the Boundary Line Agreement conclusively established that the plaintiffs alleged possession of the disputed strip of land was not hostile. Accordingly, the Supreme Court should have granted the defendants’ motion for leave to renew, and upon renewal, granted that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action.

Section 3211(a)(1) requires documentary evidence to conclusively establish a ground for dismissal.

ACA Financial Guaranty Corp. v. Goldman, Sachs & Co. · filed 2015-05-07(a)(1)

Additionally, defendant failed to submit documentary evidence that conclusively established the lack of justifiable reliance (see CPLR 3211 [a] [1]).

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

Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v. Nassau Community Coll. · filed 2015-04-08(a)(1)

On the Foundation’s motion pursuant to CPLR 7804 (f) and, in effect, CPLR 3211 (a) (1) to dismiss the petition insofar as asserted against it, the Foundation had the burden to provide documentary evidence that “utterly refute [d] [the petitioner’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] [1]).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the plaintiff’s factual allegations and conclusively establish a defense as a matter of law.

Menche v. Meltzer, Lippe, Goldstein & Breitstone, LLP · filed 2015-06-03(a)(1)

“ ‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ ”

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.

Allen v. Echeverria · filed 2015-05-13(a)(1)

A motion to dismiss 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” ... While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time ... that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession.

Under CPLR 3211(a)(1), emails described and quoted in a complaint may be treated as documentary evidence on a motion to dismiss.

Mendoza v. Akerman Senterfitt LLP · filed 2015-05-14(a)(1)

The court properly deemed the above emails that were described and quoted in the complaint itself to be documentary evidence (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014]).

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

138-140 West 32nd Street Associates LLC v. 138-140 West 32nd Street Associates · filed 2015-05-19(a)(1)

However, the deed does not conclusively establish that the partnership did not own parcel No. 1; there is circumstantial evidence that the partnership was intended to be the owner and that parcel No. 1 was treated, along with parcel No. 2, as property of the partnership (see e.g. Wiener v Spahn, 110 AD3d 443 [1st Dept 2013]).

Under CPLR 3211(a)(1), emails, correspondence, and affidavits did not establish a documentary-evidence defense warranting dismissal.

JBGR, LLC v. Chicago Title Insurance · filed 2015-05-20(a)(1)

The Supreme Court also properly determined that CPLR 3211 (a) (1) did not provide a basis on which the complaint should be dismissed. ... Therefore, the defendant failed to present any documentary evidence establishing a defense to the complaint.

Under CPLR 3211(a)(1), factual assertions in an affidavit are not documentary evidence, but an undisputed letter with essentially undeniable contents may be considered documentary evidence.

DSA Realty Services, LLC v. Marcus & Millichap Real Estate Investment Services of New York, Inc. · filed 2015-05-26(a)(1)

Although the factual assertions in the associate’s affidavit do not constitute documentary evidence (see Flowers v 73rd Townhouse LLC, 99 AD3d 431, 431 [1st Dept 2012]), the annexed letter from Lifshitz may be considered as documentary evidence since there is no dispute as to its genuineness, and its content is “essentially undeniable” (Amsterdam Hospitality Group, LLC v Marshall-Man Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014]).

A letter, a blank certified mail receipt, and an attorney’s affidavit did not constitute documentary evidence supporting dismissal under CPLR 3211(a)(1).

Lindsay v. Pasternack Tilker Ziegler Walsh Stanton & Romano LLP · filed 2015-06-10(a)(1)

The Supreme Court also properly denied that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1). The evidence submitted by the defendant, consisting of the June 8, 2007, letter, the blank certified mail receipt, and the affidavit of its former attorney, did not constitute documentary evidence (see 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850 [2015]; Attias v Costiera, 120 AD3d 1281, 1282-1283 [2014]).

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

CARLSON, SR., MICHAEL J. v. AMERICAN INTERNATIONAL GROUP, INC. · filed 2015-07-02(a)(1)

We further note that “[d]ismissal under CPLR 3211 (a) (1) is warranted ‘only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law’ ” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152, quoting Leon v Martinez, 84 NY2d 83, 88).

Documentary evidence does not warrant dismissal under CPLR 3211 when it fails to conclusively refute the plaintiff's claim.

Overseas Shipholding Group, Inc. v. Proskauer Rose, LLP · filed 2015-07-02(a)(1)

The documents submitted by defendants do not conclusively refute plaintiff's claim ( Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 433 [1st Dept 2014]).

Under CPLR 3211(a)(1), proof that a motion was prepared does not conclusively defeat a malpractice claim alleging it was not filed during counsel’s representation.

Comprehensive Mental Assessment & Medical Care, P.C. v. Gusrae Kaplan Nusbaum, PLLC · filed 2015-07-08(a)(1)

The Supreme Court erred in granting that branch of GKN’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the fourth cause of action. The fourth cause of action sought to recover damages for legal malpractice due to GKN’s alleged misrepresentation that it had filed a motion to reargue on the plaintiffs’ behalf. While the documentary evidence submitted by GKN in support of its motion established that such a motion was prepared, the motion itself indicates that it was not filed until after GKN ceased representing the plaintiffs.

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

Darby Group Companies, Inc. v. Wulforst Acquisition, LLC · filed 2015-07-22(a)(1)

Amotion to dismiss pursuant to CPLR 3211 (a) (1) is properly-granted where the documentary evidence submitted utterly refutes the factual allegations of the pleading and conclusively establishes a defense to the claim as a matter of law (see Attias v Costiera, 120 AD3d 1281 [2014]; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Kappa Dev. Corp. v Queens Coll. Point Holdings, LLC, 95 AD3d 1178 [2012]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).

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

North Oyster Bay Baymen's Ass'n v. Town of Oyster Bay · filed 2015-07-22(a)(1)

A “motion to dismiss on the ground that the action is barred by documentary evidence [will be 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]). Accepting the facts as alleged in the amended complaint as true, while Flower argued that the affirmation and documentary evidence it submitted demonstrated that it had indeed complied with its annual obligations, the documentary evidence did not utterly refute the allegations and did not conclusively establish a defense as a matter of law (see id. at 326; Bodden v Kean, 86 AD3d 524, 526 [2011]).

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.

Nugent v. Hubbard · filed 2015-07-22(a)(1)

“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Teitler v Pollack & Sons, 288 AD2d 302, 302 [2001]; see 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 utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

Board of Education of Northport-East Northport Union Free School District v. Long Island Power Authority · filed 2015-07-29(a)(1)

“A motion pursuant to CPLR 3211 (a) (1) to dismiss 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’ ” (Johan v U.S. Bank N.A., 127 AD3d 926, 927 [2015], quoting 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 utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense.

Mawere v. Landau · filed 2015-07-29(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 plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Vertical Progression, Inc. v Canyon Johnson Urban Funds, 126 AD3d 784, 786 [2015] [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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.

Town of Huntington v. Long Island Power Authority · filed 2015-07-29(a)(1)

“A motion pursuant to CPLR 3211 (a) (1) to dismiss 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’ ” (Jahan v U.S. Bank N.A., 127 AD3d 926, 927 [2015], quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

Lehlev Betar, LLC v. Soto Development Group, Inc. · filed 2015-08-12(a)(1)

Under these circumstances, the documentary evidence submitted by Soto and Hampton failed to utterly refute the factual allegations of the first cause of action, and failed to establish their entitlement to cancellation of the notice of pendency.

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal unless it conclusively defeats a factual basis for the claim.

Mawere v. Landau · filed 2015-07-29(a)(1)

The documentary evidence they submitted did not conclusively establish that no attorney-client relationship existed between them and the plaintiff (see CPLR 3211 [a] [1]).

On a CPLR 3211(a)(5) motion, a plaintiff’s showing of a factual question about whether claims are time-barred can defeat dismissal.

Chao v. Westchester Medical Center Advanced Physicians Services · filed 2015-09-23(a)(5)

The Supreme Court properly denied that branch of the motion of the defendants Westchester Medical Center Advanced Physician Services, P.C., Chitti Moorthy, and Zvi Lefkowitz (hereinafter collectively the appellants) which was to dismiss the first six causes of action insofar as asserted against them, sounding in tort, as time-barred (CPLR 3211 [a] [5]). In opposition to the appellants’ prima facie showing in support of that branch of their motion (see Beroza v Sallah Law Firm, P.C., 126 AD3d 742, 742 [2015]), the plaintiff demonstrated that there was a question of fact as to whether those causes of action were time-barred (see id.; Griffin v Perrotti, 121 AD3d 1041, 1041-1042 [2014]).