N.Y. C.P.L.R. § 3211

Under CPLR 3211(a)(1) and (7), an unambiguous stipulation can support dismissal when its terms conclusively contradict the claims in the complaint.

McMahan v. McMahan · filed 2015-08-19(a)(1) and (7)

The unambiguous terms of that stipulation conclusively established that it did not contain the terms that the plaintiff alleged that the defendant had breached or on which she sought specific performance. Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) (see Laxer v Edelman, 75 AD3d at 585-586).

Under CPLR 3211(a)(1), documents offered to support dismissal must qualify as documentary evidence and be presented in admissible form.

Prodan v. New York State Division of Human Rights · filed 2015-09-14(a)(1)

While the documents Weston United presents do fall within the limited categories of documentary evidence the court may rely on to dismiss the petition under CPLR 3211 (a) (1), most of Weston United’s documents are not presented in admissible form.

Under CPLR 3211(a)(1), a settlement agreement supports dismissal only when its clear terms conclusively dispose of the claim; uncertainty about conditions for withdrawal prevents dismissal.

Rudovic v. Rudovic · filed 2015-09-30(a)(1)

Here, contrary to the defendants’ contention, the Montenegro agreement does not conclusively dispose of this matter, because it is not clear from the Montenegro agreement to what extent its terms have been met or whether or what conditions were supposed to have been met before the parties were obligated to withdraw this action.

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

International Fidelity Insurance v. Quenzer Electric Systems, Inc. · filed 2015-10-21(a)(1)

Further, a motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted 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]; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588 [2014]).

Under CPLR 3211(a)(1), documentary evidence that conclusively refutes an allegation can support dismissal.

Cadet v. James B. Nutter & Co. · filed 2015-11-04(a)(1)

However, this allegation was conclusively refuted by documentary evidence, to wit, a written agreement between Nutter and Lexington (see CPLR 3211 [a] [1]).

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

Ganje v. Yusuf · filed 2015-11-05(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) is properly granted "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ... Under these circumstances, Supreme Court properly granted defendant's motion to dismiss the complaint based upon documentary evidence.

A reasonably communicated and fundamentally fair forum selection clause in a cruise passenger ticket can be documentary evidence supporting dismissal under CPLR 3211(a)(1).

Fritsche v. Carnival Corp. · filed 2015-10-21(a)(1)

A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness, and the submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211 (a) (1) (see Lischinskaya v Carnival Corp., 56 AD3d 116, 120 [2008]).

Under CPLR 3211(a)(1), affidavits and text messages that are not essentially undeniable do not constitute documentary evidence supporting dismissal.

Eisner v. Cusumano Construction, Inc. · filed 2015-10-28(a)(1)

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not “ ‘essentially undeniable,’ ” and did not constitute documentary evidence (Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010], quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-22; see Attias v Costiera, 120 AD3d at 1283; Granada Condominium III Assn. v Palomino, 78 AD3d at 997).

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

Mitkowski v. Marceda · filed 2015-11-04(a)(1)

Dismissal 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 plaintiff’s factual allegations, and conclusively disposes of the plaintiff’s 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 CPLR 3211(a)(1), affidavits, deposition testimony, and letters are not documentary evidence that supports dismissal.

Shofel v. DaGrossa · filed 2015-11-12(a)(1)

“Neither affidavits, deposition testimony, nor letters are considered ‘documentary evidence’ within the intendment of CPLR 3211 (a) (1)”

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

Yeon v. Mehta · filed 2015-12-02(a)(1)

“Under CPLR3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (id. at 88). Applying these principles, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint.

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

Hefter v. Elderserve Health, Inc. · filed 2015-12-02(a)(1)

To prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), a party must come forward with documentary evidence which “ ‘utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ ” (Allen v Echeverria, 128 AD3d 738, 739 [2015], quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 326 [2002]; see Waterfalls Italian Cuisine, Inc. v Tamarin, 119 AD3d 773, 775 [2014]; Minovici v Belkin BV, 109 AD3d 520, 522 [2013]; Yue Fung USA Enters., Inc. v Novelty Crystal Corp., 105 AD3d 840, 841 [2013]).

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.

Raach v. SLSJET Management Corp. · filed 2015-12-09(a)(1)

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

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

Leon Holdings, LLC v. Northville Industries Corp. · filed 2015-12-16(a)(1)

In addition, to the extent that Leon sought to recover purported remediation costs in connection with the 1992 petroleum spill, the defendant conclusively demonstrated a defense to those claims, through documentary evidence in the form of its contract with CP. ... Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 3211 (a) (1) to dismiss the amended complaint.

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.

Matter of Long Is. Power Auth. Hurricane Sandy Litig. · filed 2015-12-30(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”

On a pre-answer motion under CPLR 3211(a)(1), documentary evidence must conclusively establish the defense as a matter of law to warrant dismissal.

2015 Freeman LLC v. Seneca Specialty Insurance · filed 2016-02-16(a)(1)

In order to prevail on its pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence submitted by defendant must conclusively establish as a matter of law that its denial of insurance coverage was reasonably justified (see McCurdy v Hanover Fire & Cas. Ins. Co., 964 F Supp 2d 863, 874 [ND Ohio 2013] [applying Ohio law]; see generally Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014]). The documentary evidence submitted by defendant failed to establish its defense as a matter of law, and plaintiffs are entitled to proceed with discovery.

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.

Podesta v. Assumable Homes Development II Corp. · filed 2016-03-02(a)(1)

“A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Randazzo v Nelson, 128 AD3d 935, 936-937 [2015]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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.

Denenberg v. Schaeffer · filed 2016-03-30(a)(1)

Accordingly, since the documentary evidence submitted by the defendant conclusively established, as a matter of law, a defense to the cause of action alleging breach of contract, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss that cause of action (see CPLR 3211 [a] [1]).

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.

SV Vernon 43, LLC v. Malik · filed 2016-04-06(a)(1)

Here, contrary to Katz’s contention, the documentary evidence he submitted was insufficient to utterly refute either the existence of fraud, Katz’s knowledge thereof, or his substantial assistance in the achievement of the alleged fraud.

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.

Etzion v. Etzion · filed 2016-04-06(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” ... Here, the documentary evidence submitted by the defendants conclusively established that Rafael had no duty to disclose the Branford offer to the plaintiff.

Under CPLR 3211(a)(1), documentary evidence can support dismissal when it conclusively defeats the pleaded cause of action.

LAIG v. Medanito S.A. · filed 2016-05-03(a)(1)

The documentary evidence conclusively demonstrates that plaintiff has no cause of action for breach of the non-circumvention clause based on defendant’s unilateral purchase of the investment entity without first securing plaintiff’s formal decision as to whether or not it would participate, and, by reasonable inference, meet its purchase obligation at the impending closing.

A motion to dismiss under CPLR 3211(a)(5) based on a release should be denied when fraud or duress in procuring the release is alleged.

Pacheco v. 32-42 55th Street Realty, LLC · filed 2016-05-11(a)(5)

However, a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” (Farber v Breslin, 47 AD3d 873, 877 [2008]; see Warmhold v Zagarino, 106 AD3d 994, 995 [2013]; Storman v Storman, 90 AD3d 895, 898 [2011]; Steen v Bump, 233 AD2d 583, 584 [1996]; see also Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]; cf. Booth v 3669 Delaware, 92 NY2d 934, 935 [1998]).

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

T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp. · filed 2016-05-25(a)(1)

Additionally, the documentary evidence submitted by the City did not utterly refute International’s factual allegations and, thus, did not conclusively establish a defense as a matter of law (see CPLR 3211 [a] [1]).

Under CPLR 3211(a)(7), documentary evidence warrants dismissal if it flatly contradicts the allegations; under (a)(1), it must conclusively establish a defense as a matter of law.

NRES Holdings, LLC v. Almanac Realty Securities VI, LP · filed 2016-06-28(a)(1), (a)(7)

Defendant failed to present documentary evidence that either flatly contradicts these allegations, so as to warrant dismissal pursuant to CPLR 3211 (a) (7) (see David v Hack, 97 AD3d 437 [1st Dept 2012]) or conclusively establishes a defense as a matter of law so as to warrant dismissal pursuant to CPLR 3211 (a) (1) (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

Jefferson Apartments, Inc. v. Mauceri · filed 2016-07-25(a)(1)

The branch of the motion seeking the complaint’s dismissal based upon documentary evidence is denied. There are issues which are not conclusively resolved by the documentary evidence and other evidentiary facts tendered by the plaintiff (see City Line Rent A Car, Inc. v Alfess Realty, LLC, 33 AD3d 835, 836 [2006]).

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.

New York Military Academy v. NewOpen Group · filed 2016-08-03(a)(1)

The Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint, as documentary evidence, in the form of the letter of intent, utterly refuted the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law (see CPLR 3211 [a] [1]; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]).

Under CPLR 3211(a)(1), evidence supporting dismissal must qualify as documentary evidence and utterly refute the complaint’s factual allegations, conclusively establishing a defense as a matter of law.

Persaud v. Everest National Insurance · filed 2016-08-10(a)(1)

With respect to that branch of Everest’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1), the court properly determined that the evidence relied upon by Everest to establish that it did not receive timely notice of the underlying claim did not constitute documentary evidence (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010]). Further, Everest’s proof did not utterly refute the plaintiffs’ factual allegations, conclusively establishing a defense as a matter of law (see Nunez v Mohamed, 104 AD3d 921, 922 [2013]).

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

Lowenstern v. Sherman Square Realty Corp. · filed 2016-10-20(a)(1)

In addition, Supreme Court properly denied defendants’ motion to dismiss pursuant to CPLR 3211 (a) (1), because the climactical records do not conclusively refute the complaint’s allegations.

CPLR 3211(a)(1) permits dismissal when documentary evidence sufficiently supports a contractual limitations defense.

D & S Restoration, Inc. v. Wenger Construction Co. · filed 2016-10-27(a)(1)

CPLR 3211 (a) (1) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded upon documentary evidence.” Here, defendant has asserted a defense on the grounds that the cause of action on the contract is time-barred, and which the court finds to be sufficiently supported by the competent documentary evidence presented.

Under CPLR 3211(a)(1), a written agreement that unambiguously contradicts allegations supporting a breach of contract claim is documentary evidence warranting dismissal.

Madison Equities, LLC v. Serbian Orthodox Cathedral of St. Sava · filed 2016-11-01(a)(1)

“[W]here a written agreement . . . unambiguously contradicts the allegations supporting a litigant’s cause of action for breach of contract, the contract itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to CPLR 3211 (a) (1)” (150 Broadway N.Y. Assoc., L.R v Bodner, 14 AD3d 1, 5 [1st Dept 2004]). Here, plaintiff contends that, in paragraph 8 of the parties’ letter of intent, defendant represented and warranted that it had no agreement with Tenant-wise, Inc. concerning the calculation of the latter’s fees. However, paragraph 8 simply does not say what plaintiff claims it says, and thus, the court properly granted defendant’s motion.

Evidence offered under CPLR 3211(a)(1) must conclusively dispose of the plaintiff’s claims to support dismissal.

Bibbo v. Arvanitakis · filed 2016-12-07(a)(1)

The evidence submitted by Arvanita-kis and the PLLC did not conclusively dispose of the plaintiffs’ claims against the PLLC, regardless of whether that evidence qualified as “documentary” under CPLR 3211 (a) (1). Accordingly, the Supreme Court did not err in denying that branch of the motion which was pursuant to CPLR 3211 (a) (1) to dismiss the subject causes of action.

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

Jenkins v. Jenkins · filed 2016-12-08(a)(1)

In short, inasmuch as defendant's documentary evidence conclusively established that plaintiff failed to comply with all of the terms and conditions set forth in the parties' 2013 stipulation of settlement, Supreme Court properly granted defendant's motion to dismiss pursuant to CPLR 3211 (a) (1).

Emails may qualify as documentary evidence under CPLR 3211(a)(1).

Calpo-Rivera v. Siroka · filed 2016-11-22(a)(1)

Emails can suffice as documentary evidence for purposes of CPLR 3211 (a) (1); however, the emails, factual affidavits, and contract in this case do not constitute documentary evidence within the meaning of the statute {see Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]; Sprung v Command Sec. Corp., 38 AD3d 478, 479 [1st Dept 2007]).

A defendant waives a documentary-evidence defense under CPLR 3211(a)(1) when it is omitted from the answer and the motion is made after the answer is due.

Pesce Bros., Inc. v. Cover Me Ins. Agency of NJ, Inc. · filed 2016-11-30(e)

As the Supreme Court properly determined, the Cover Me defendants waived their right to move pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them based upon documentary evidence, because this defense was not raised in their answer and the motion was not made before the answer was due (see CPLR 3211 [e]; Margolin v IM Kapco, Inc., 89 AD3d 690, 691 [2011]).

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

Gym Door Repairs, Inc. v. Astoria General Contracting Corp. · filed 2016-11-30(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) may appropriately 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 Leon v Martinez, 84 NY2d at 88; Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402 [2009]).

Section 3211(a)(1) permits dismissal of counterclaims when documentary evidence conclusively refutes their factual basis.

Newmark & Co. Real Estate, Inc. v. Frischer · filed 2016-12-01(a)(1)

The operative employee handbook stating, inter alia, that bonuses were paid at the sole discretion of plaintiff, and the acknowledgment of the handbook's terms signed by defendant, conclusively refute the counterclaims based on the alleged oral promise to pay an annual nondiscretionary bonus ( see Kaplan v Capital Co. of Am. , 298 AD2d 110 [1st Dept 2002], lv denied 99 NY2d 510 [2003]).

A prior appellate order can be documentary evidence supporting dismissal under section 3211(a)(1) when its holding flatly contradicts the complaint’s allegations.

Optical Communications Groups, Inc. v. Rubin, Fiorella & Friedman, LLP · filed 2016-12-06(a)(1)

The motion court properly found that the Second Circuit’s order in Optical II, affirming Optical I, is documentary evidence within the meaning of CPLR 3211 (a) (1), and that its holding flatly contradicts the legal conclusions and factual allegations in the complaint (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014]; Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78 [1st Dept 2003], lv denied 100 NY2d 512 [2003]).

Section 3211(a)(1) permits a court to consider the parties’ course of performance on a motion to dismiss when it confirms the agreement’s plain language or utterly refutes the plaintiff’s claims.

Matter of Buffalo Schools Renovation Program · filed 2016-12-08(a)(1)

Such evidence may be considered on a CPLR § 3211(a)(1) motion to dismiss where it confirms the "plain language of the agreement" or "utterly refutes" the plaintiff's claims ( Ellington v. Emi Mills Music, Inc. , 2011 NY Misc LEXIS 6631, at *6-8, 11 [Sup Ct NY Co 2011]; see also TDD Irrevocable Trust v. J & A Saporta Realty Corp. , 139 AD3d 706 , 707 [2nd Dept 2016]).

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.

Carbone v. Deutsche Bank National Trust Co. · filed 2016-12-21(a)(1)

Amotion pursuant to CPLR 3211 (a) (1) 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” ... Accordingly, the Supreme Court properly granted the Bank’s motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint and properly denied Carbone’s cross motion for summary judgment on the complaint.

On a motion to dismiss a petition under CPLR 3211(a)(1), the movant must provide documentary evidence that utterly refutes the petitioner's factual allegations and conclusively establishes a defense as a matter of law.

Matter of Palmore v. Board of Educ. of Hempstead Union Free Sch. Dist. · filed 2016-12-30(a)(1)

On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, "conclusively establishing a defense as a matter of law" ( Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866 [internal quotation marks omitted]).

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

Anzora v. 81 Saxon Avenue Corp. · filed 2017-01-18(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925 [2014]).

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.

Sasidharan v. Piverger · filed 2016-12-14(a)(1)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) on the ground that the action is barred by documentary evidence, “the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847 [2014]; see Leon v Martinez, 84 NY2d at 88; T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d at 1041; Lucia v Goldman, 68 AD3d 1064, 1065 [2009]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively defeats the cause of action as a matter of law.

Guidance Enhanced Green Terrain, LLC v. Bank of America Merrill Lynch · filed 2017-01-05(a)(1)

The motion court erred in dismissing the first cause of action for breach and repudiation of contract based on documentary evidence (see CPLR 3211[a][1]). Defendants failed to establish that the terms of the assignment of claim agreement between plaintiff and defendant Banc of America Credit Products, Inc. (BACP), dated April 8, 2013, conclusively defeats that cause of action as a matter of law ( see Leon v Martinez , 84 NY2d 83, 88 [1994]).

On a CPLR 3211(a)(1) and (7) motion, conclusive documentary evidence can require plaintiffs to submit affidavits or other materials to preserve their pleading.

Rosenbaum, Rosenfeld & Sonnenblick, LLP v. Excalibur Group NA, LLC · filed 2017-01-10(a)(1) and (7)

Similarly, Supreme Court should have granted Superior’s motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint and cross claims against it in the action by the insured and another tenant and landlord of the building for essentially the same reasons, although the analysis is different because of the procedural posture. ... Such documentary evidence conclusively established that Superior had no duty to detect, modify, or alter the improper connection. It was thus incumbent on the plaintiffs, in order to preserve their pleading, to submit affidavits or other materials to establish that Superior had a duty to detect and/or correct the improper connection outside the scope of its contract (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

Under CPLR 3211(a)(1), documentary evidence warrants dismissal only if it conclusively establishes a defense by utterly refuting the plaintiff’s factual allegations.

Lakhi General Contractor, Inc. v. New York City School Construction Authority · filed 2017-02-15(a)(1)

In considering a motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) based on documentary evidence, dismissal is warranted “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 Sabre Real Estate Group, LLC v Ghazvini, 140 AD3d 724 [2016]; Mawere v Landau, 130 AD3d 986, 987 [2015]).

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

Hartnagel v. FTW Contracting · filed 2017-02-08(a)(1)

The defendants’ other evidentiary submissions were insufficient to utterly refute the plaintiff’s factual allegations.

Under CPLR 3211(a)(1), an ambiguous contractual disclaimer does not conclusively establish a defense warranting dismissal of a fraud counterclaim.

THE PIKE COMPANY, INC. v. JERSEN CONSTRUCTION GROUP, LLC · filed 2017-02-10(a)(1)

We conclude that the subcontract is ambiguous whether the disclaimer clause in section 1.8 precludes Jersen from relying on any opinions or representations concerning work performed by others after Jersen executed the subcontract, and thus that section 1.8 does not “conclusively establish[ ] a defense” to the counterclaim for fraud (Leon v Martinez, 84 NY2d 83, 88).

Under subsection (a)(1), an unambiguous contract can warrant dismissal when its terms utterly refute the plaintiff’s allegations.

Wilson v. Poughkeepsie City School District · filed 2017-02-22(a)(1)

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint.

Section 3211(a)(1) permits dismissal when documentary evidence establishes that the plaintiffs breached the agreement they seek to enforce.

Modica v. Topaz Enterprises, Inc. · filed 2017-02-22(a)(1)

While the court properly granted Topaz’s motion to dismiss the complaint, it should not have been, as stated in the order appealed from, on the ground that the parties did not have a valid agreement. Rather, the documentary evidence submitted in support of the motion established that the plaintiffs breached the very agreement that they sought to enforce. Accordingly, we affirm the order directing dismissal of the complaint on that ground.

Section 3211(a)(1) permits dismissal when documentary evidence flatly rejects the plaintiff’s allegations.

Underground Utilities Inc. v. JP Morgan Chase Bank, N.A. · filed 2017-02-28(a)(1)

The Custodial Service Agreement submitted with the motion to dismiss “flatly rejected” plaintiff’s allegations, and thus dismissal was warranted (Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 135 [1st Dept 2014]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]; CPLR 3211 [a] [1]).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the allegations and conclusively establish a defense as a matter of law to warrant dismissal.

Stout Street Fund I, L.P. v. Halifax Group, LLC · filed 2017-03-01(a)(1)

The Stout entities also failed to establish their entitlement to the striking of DLJ’s 5th through 8th and 11th affirmative defenses and the dismissal of its 1st and 2nd counterclaims/ third-party causes of action insofar as asserted against them pursuant to CPLR 3211 (a) (1). The documentary evidence submitted by the Stout entities, which included their own underwriting file, failed to utterly refute DLJ’s factual allegations, and failed to conclusively establish a defense to the counterclaims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also JP Morgan Chase Bank v Munoz, 85 AD3d at 1125-1126).

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

Nanto MK Corp. v. J & E Realty · filed 2017-02-28(a)(1)

The documentary evidence conclusively establishes a defense to plaintiff’s claim for specific performance of a lease renewal option.

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

Gawrych v. Astoria Federal Savings & Loan · filed 2017-03-01(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 [2010]; Fontanetta v John Doe 1, 73 AD 3d 78 [2010]).

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

Scialdone v. Stepping Stones Associates, L.P. · filed 2017-03-15(a)(1)

The court properly found that this documentary evidence resolved all factual issues as a matter of law, and conclusively disposed of these causes of action.

Under CPLR 3211(a)(1), documentary evidence offered to establish lack of standing must utterly refute the plaintiff’s factual allegations and conclusively establish that defense.

MLB Sub I, LLC v. Bains · filed 2017-03-15(a)(1)

Furthermore, the defendant failed to present “documentary evidence,” within the meaning of CPLR 3211 (a) (1), that utterly refuted the plaintiff’s factual allegations, conclusively establishing a defense based on lack of standing as a matter of law (CPLR 3211 [a] [1]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Anderson v Armentano, 139 AD3d 769, 771 [2016]; Fontanetta v John Doe 1, 73 AD3d 78, 85 [2010]).

Emails and correspondence may qualify as documentary evidence on a motion to dismiss when they are essentially undeniable and show that the disputed information was disclosed.

Kany v. Kany · filed 2017-03-23(a)(1)

The emails and written correspondence may be considered documentary evidence, because they were submitted to show that defendant’s supplemental retirement assets were disclosed, and they are “essentially undeniable” (Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal quotation marks omitted]).

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

Dixon v. 105 West 75th Street LLC · filed 2017-03-30(a)(1)

Moreover, they demonstrate in an unambiguous and conclusive fashion the basic premise that landlord made a significant change to the living space, thus satisfying CPLR 3211(a)(1) and the substantive statutory provisions that led to the rent increase.

Section 3211 permits preanswer dismissal based on documentary evidence that flatly contradicts the complaint's allegations or conclusively establishes a defense as a matter of law.

Douglas Elliman LLC v. Kwon · filed 2017-04-14(a)(1), (a)(7)

Defendant failed to present documentary evidence that either flatly contradicts the allegations in the complaint so as to warrant dismissal pursuant to CPLR 3211(a)(7) ( see Maas v Cornell Univ ., 94 NY2d 87, 91 [1999]), or conclusively establishes a defense as a matter of law so as to warrant dismissal pursuant to CPLR 3211(a)(1) ( see Leon v Martinez , 84 NY2d 83 [1994]).

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

Keitel v. ETrade Fin. Corp. · filed 2017-04-17(a)(1)

Dismissal is warranted under CPLR 3211[a][1] only if the documentary evidence submitted utterly refutes plaintiff's factual allegations ( Amsterdam Hospitality Group, LLC v Marshall-Alan Associates, Inc. , 120 AD3d 431 , 433 [1st Dept 2014])(internal quotations omitted).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it utterly refutes the allegations.

Highlands Center, LLC v. Home Depot U.S.A., Inc. · filed 2017-04-19(a)(1)

Turning to the branch of the plaintiff’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the second counterclaim, the Supreme Court correctly determined that the language of the relevant agreements and, in particular, the ground lease, did not utterly refute the allegations made in the second counterclaim (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; All Is. Media, Inc. v Creative AD Worx, Inc., 79 AD3d 677, 679 [2010]).

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.

CARBONE, ALISON M. v. BRENIZER, JON W. · filed 2017-03-31(a)(1)

We agree with plaintiff that Supreme Court erred in granting defendants’ motion to dismiss to the extent they relied on CPLR 3211 (a) (1). A court may grant such a motion “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Vassenelli v City of Syracuse, 138 AD3d 1471, 1473).

CPLR 3211 (a) (1) permits dismissal based on documentary evidence only when that evidence conclusively disproves a material allegation and leaves no significant factual dispute.

Brannigan v. Christie Overhead Door · filed 2017-04-19(a)(1)

Contrary to the third-party defendants’ contentions, the evidence they submitted in support of the motion either was not documentary evidence within the meaning of CPLR 3211 (a) (1) or did not conclusively establish that a material fact as claimed by the third-party plaintiffs is not a fact at all and that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Anzora v 81 Saxon Ave. Corp., 146 AD3d 848, 849 [2017]; Sasidharan v Piverger, 145 AD3d 814, 815-816 [2016]; Laxer v Edelman, 75 AD3d 584, 586 [2010]).

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

Old Republic National Title Insurance Co. v. Junction Abstract, Inc. · filed 2017-05-03(a)(1)

To prevail on that branch of its motion which was pursuant to CPLR 3211 (a) (1) to dismiss the amended complaint insofar as asserted against it, Junction 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]). Here, Junction’s documentary evidence did not utterly refute the factual allegations of the amended complaint. Accordingly, the Supreme Court properly denied that branch of Junction’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the amended complaint insofar as asserted against it based on documentary evidence.

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

Jackson v. Gross · filed 2017-05-03(a)(1)

A motion to dismiss a cause of action pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the cause of action 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]).

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

Tretter v. Tretter · filed 2017-05-17(a)(1)

Amotion pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted 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]).

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

Serao v. Bench-Serao · filed 2017-04-25(a)(1)

However, factual affidavits do not constitute documentary evidence within the meaning of the statute (Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

A transcript of court proceedings and affidavits are not documentary evidence for a motion to dismiss under CPLR 3211 (a) (1).

Petrone v. Davidoff Hutcher & Citron, LLP · filed 2017-05-03(a)(1)

Contrary to the defendant’s contention, a transcript of court proceedings and affidavits it submitted in support of its motion did not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1) (Anderson v Armentano, 139 AD3d 769, 771 [2016]; see Eisner v Cusumano Constr., Inc., 132 AD3d 940, 941-942 [2015]; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713 [2012]).

Under CPLR 3211(a)(1), a letter that does not conclusively refute the plaintiff’s allegations does not warrant dismissal as documentary evidence.

Prott v. Lewin & Baglio, LLP · filed 2017-05-03(a)(1)

Here, the evidence submitted by the defendants, which included a letter dated September 28, 2012, purporting to terminate the attorney-client relationship between the plaintiff and the defendants, did not constitute documentary evidence within the meaning of CPLR 3211 (a) (1) and, in any event, failed to utterly refute the plaintiff’s factual allegations, thereby failing to conclusively establish a defense as a matter of law (see Mawere v Landau, 130 AD3d at 990; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792 [2015]; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d at 851; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602 [2014]).

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

Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc. · filed 2017-05-04(a)(1)

In the context of an application brought under CPLR 3211 (a) (1), the issue becomes whether the documentary evidence relied upon by the proponent of dismissal conclusively resolves all factual issues as a matter of law.

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

4777 Food Services Corp. v. Anthony P. Gallo, P.C. · filed 2017-05-24(a)(1)

Here, the Rizzo order does not utterly refute the allegations in the complaint, nor does it establish a defense as a matter of law.

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

Kulkarni v. Arredondo & Co., LLC · filed 2017-06-07(a)(5)

The Supreme Court properly granted dismissal of the complaint pursuant to CPLR 3211 (a) (5).

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

Board of Managers of the 125 North 10th Condominium v. 125North10, LLC · filed 2017-05-24(a)(1)

Contrary to the sponsors’ contention, the Supreme Court did not err in granting those branches of the separate motions which were pursuant to CPLR 3211 (a) (1) to dismiss the third-party cause of action for common-law indemnification insofar as asserted against Cucich and Seta.

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.

Cavaliere v. 1515 Broadway Fee Owner, LLC · filed 2017-05-31(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]).

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

221 Middle Neck Owners Corp. v. Paris · filed 2017-06-01(a)(1)

Here, the material submitted by the respondents in support of their motion, namely, the affidavits of Rose Paris and Catalina Paris, do not constitute documentary evidence within the meaning of CPLR 3211 (a) (1).

Under CPLR 3211(a)(1), an operating agreement does not support dismissal of a claim it does not flatly contradict.

New York Studios, Inc. v. Steiner Digital Studios · filed 2017-06-06(a)(1)

The parties’ operating agreement, which allows defendants to compete with plaintiff Eponymous Associates, LLC, does not flatly contradict plaintiffs’ claim that defendants usurped Eponymous’s corporate opportunities and assets (see CPLR 3211 [a] [1]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

NCA Comp, Inc. v. 1289 Clifford Ave. · filed 2017-06-09(a)(1)

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

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

Board of Managers of 100 Congress Condominium v. SDS Congress, LLC · filed 2017-07-05(a)(1)

A motion to dismiss a complaint based upon documentary evidence under CPLR 3211 (a) (1) may be granted “only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Nunez v Mohamed, 104 AD3d 921, 922 [2013]).

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

XXXX, L.P. v. 363 Prospect Place, LLC · filed 2017-08-02(a)(1)

Contrary to the defendants’ contention, the Supreme Court properly denied that branch of their cross motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint. ... Here, the proffered documentary evidence does not conclusively dispose of the plaintiff’s causes of action for a judgment declaring that it has an implied easement by preexisting use, an easement by necessity, and an easement by prescription.

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

Hoeg Corp. v. Peebles Corp. · filed 2017-08-09(a)(1)

Thus, the documentary evidence submitted by the defendant conclusively disposed of the plaintiff’s claim alleging breach of the purported oral joint venture agreement. Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action, which alleges breach of contract.

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.

Mace v. Tunick · filed 2017-08-16(a)(1)

Moreover, the defendants were not entitled to dismissal of the first cause of action under CPLR 3211 (a) (1). Neither the operating agreement nor the leases of the property to Ceres and, upon Ceres’ relocation, a third party, utterly refuted the plaintiff’s allegation as to Pedani’s purpose so as to conclusively establish a defense as a matter of law to the plaintiff’s dissolution cause of action (see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Old Republic Natl. Tit. Ins. Co. v Junction Abstract, Inc., 150 AD3d 757, 758 [2017]).

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

McBride v. New York Property Insurance Underwriting Ass'n · filed 2017-07-05(a)(1)

NYPIUA’s documentary evidence failed to conclusively demonstrate as a matter of law that a windstorm was not a direct or proximate cause of the damage (see Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 47, 52-54 [1918]; Mawardi v New York Prop. Ins. Underwriting Assn., 183 AD2d 756, 757-758 [1992]; Granchelli v Travelers Ins. Co., 167 AD2d 839 [1990]).

Under subsection (a)(1), documentary evidence supports dismissal only when it conclusively establishes a defense.

Lots 4 Less Stores, Inc. v. Integrated Properties, Inc. · filed 2017-07-07(a)(1)

According plaintiff the benefit of every favorable inference, we conclude that neither the original lease nor the subsequent agreements to modify the lease establish, as a matter of law, that Mid-City or Integrated Properties succeeded the lessor actually named in those documents and, in any event, the provision in the original lease upon which defendants rely does not conclusively establish their possessory rights to the tanning beds.

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

Board of Managers of the Reade Chambers Condominium v. 71 RC Property, LLC · filed 2017-07-11(a)(1)

The sponsor defendants’ documentary evidence does not conclusively provide a defense to these claims.

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

Phillips v. Taco Bell Corp. · filed 2017-07-26(a)(1)

Here, the affidavits submitted in support of the defendants’ motion were not documentary evidence within the meaning of CPLR 3211 (a) (1).

Documentary evidence does not warrant dismissal under CPLR 3211 when it fails to conclusively establish a fact needed to defeat a viable claim.

NMC Residual Ownership L.L.C. v. U.S. Bank National Ass'n · filed 2017-08-01(a)(1)

Plaintiffs have stated a viable cause of action for breach of contract that should not have been dismissed. The documentary evidence does not conclusively establish that the trustee actually purchased the trust assets in its own name before reselling them.

Letters from an attorney and claims services do not qualify as documentary evidence for a motion to dismiss under section 3211(a)(1).

Fox Paine & Co., LLC v. Houston Casualty Co. · filed 2017-08-16(a)(1)

Accordingly, the letters from the attorney and claims services relied upon by Houston Casualty do not constitute documentary evidence for the purposes of CPLR 3211 (a) (1).

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

Feldshteyn v. Brighton Beach 2012, LLC · filed 2017-08-16(a)(1)

Here, the letters submitted by the defendant did not constitute documentary evidence within the meaning of CPLR 3211 (a) (1), and should not have been relied upon by the Supreme Court as a basis for granting the defendant’s motion to dismiss the complaint.

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

Derago v. Ko · filed 2017-08-16(a)(1)

Moreover, the plaintiff also presented documentary evidence establishing that the defendant knew of the plaintiffs prior income and utterly refuted any allegation that the defendant was misled as to the plaintiffs income (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.

Live Invest, Inc. v. Morgan · filed 2017-09-07(a)(1)

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted utterly refutes the plaintiff's factual allegations, conclusively establishing a defense to the asserted claims as a matter of law ( Id . at 88).

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

Jones v. Glick · filed 2017-09-15(a)(1)

On a motion to dismiss based on documentary evidence 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.’ Put differently, the documentary evidence must resolv[e] all factual issues as a matter of law and conclusively dispose! ] of the plaintiff’s claim.’ ” (Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 806 [2d Dept 2011] [citations omitted].) ... The above-mentioned documents clearly show that the agreement for dental services and payment arrangements for same were made between plaintiff and Riverdale Family Dentistry, P.C., and not between plaintiff and defendants.

A release does not warrant dismissal under CPLR 3211(a)(1) or (5) when its coverage of the claims is ambiguous and it does not conclusively dispose of them.

Mazzurco v. PII Sam, LLC · filed 2017-09-20(a)(1), (a)(5)

Here, the release at issue is ambiguous regarding whether the parties intended that it cover the claims alleged in the instant action. Moreover, the release did not “conclusively dispose[ ]” of the plaintiff’s claims (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010] [internal quotation marks omitted]). Thus, the Supreme Court properly granted reargument and, upon re-argument, properly denied the defendants’ motion pursuant to CPLR 3211 (a) (1) and (5) to dismiss the amended complaint (see Desiderio v Geico Gen. Ins. Co., 107 AD3d 662, 663 [2013]; Kaprall v WE: Women’s Entertainment, LLC, 74 AD3d at 1152).

CPLR 3211(a)(1) permits dismissal of a breach of contract claim when documentary evidence conclusively refutes the alleged contractual obligation.

Barrett v. Grenda · filed 2017-10-06(a)(1)

In addition, the documentary evidence submitted by the TD Ameritrade defendants, i.e., the IRA Application and Client Agreement, conclusively refutes plaintiff’s allegation that the TD Ameritrade defendants owed any such contractual obligations to her. Consequently, we agree with the TD Ameritrade defendants that the court erred in failing to dismiss the breach of contract cause of action against them (see CPLR 3211 [a] [1]; Sheriff’s Silver Star Assn., Inc. v County of Oswego, 27 AD3d 1104, 1105-1106 [2006], lv denied 7 NY3d 712 [2006]).

Section 3211(a)(1) permits documentary evidence of a judicial proceeding to support a motion to dismiss based on the fair report privilege.

Greenberg v. Spitzer · filed 2017-09-13(a)(1)

Second, insofar as Spitzer invokes the absolute privilege afforded to “a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74), “documentary evidence” within the meaning of CPLR 3211 (a) (1) may be offered for such purpose (see e.g. Saleh v New York Post, 78 AD3d at 1152; Sokol v Leader, 74 AD3d at 1182-1183; Cholowsky v Civiletti, 69 AD3d 110 [2009]).

An unambiguous contract provision may qualify as documentary evidence supporting dismissal under CPLR 3211(a)(1).

413 Throop, LLC v. Triumph, the Church of the New Age · filed 2017-09-20(a)(1)

An unambiguous contract provision may qualify as documentary evidence under CPLR 3211 (a) (1) (see Wilson v Poughkeepsie City Sch. Dist., 147 AD3d 1112, 1113 [2017]; Madison Equities, LLC v Serbian Orthodox Cathedral of St. Sava, 144 AD3d 431, 431 [2016]). Here, the Supreme Court properly determined that the defendant had conclusively established as a matter of law that the disputed provision in the contract clearly and unambiguously limited the purchaser’s remedy in the event of the defendant’s breach of the contract to the return of the down payment, and thus precluded specific performance or an award of damages.

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

AMCC Corp. v. New York City School Construction Authority · filed 2017-10-04(a)(1)

Additionally, in considering a motion to dismiss a complaint 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” (Gould, v Decolator, 121 AD3d 845, 847 [2014]; see Leon v Martinez, 84 NY2d at 88; T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d at 1041; Lucia v Goldman, 68 AD3d 1064, 1065 [2009]).

An extension agreement that reasonably may cover untimely claims cannot support dismissal of those claims under CPLR 3211.

AMCC Corp. v. New York City School Construction Authority · filed 2017-10-04

The parties’ extension agreement was subject to more than one reasonable interpretation, as they may have intended it to apply to the plaintiff’s untimely claims as well as its timely claims. In light of this ambiguity, dismissal of the plaintiff’s untimely claims pursuant to CPLR 3211 was improper (see Telerep, LLC v U.S. Intl. Media, LLC, 74 AD3d 401, 402-403 [2010]; Town of Riverhead v Silverman, 54 AD3d 1025, 1026 [2008]; R.I. Is. House, LLC v North Town Phase II Houses, Inc., 51 AD3d 890, 894-895 [2008]).

A defendant seeking dismissal based on a release must establish that the defendant falls within the group covered by the release.

Burgos v. New York Presbyterian Hospital · filed 2017-11-01(a)(5)

Here, although the terms of the Satiety release are clear and unambiguous (see Wells v Shearson Lehman/American Express, 72 NY2d 11, 22-23 [1988]; Fiakpoey v Middlesworth, 118 AD3d 743, 745 [2014]; Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758 [1998]), the defendants failed to establish that they fell within the defined group of releasees as a matter of law (cf. Fiakpoey v Middlesworth, 118 AD3d at 745; Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d at 758). The Supreme Court therefore properly denied those branches of the defendants’ motions to dismiss which were based on the defense of valid release.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, including evidence that an insured settled without the insurer’s required consent.

Ralex Services, Inc. v. Southwest Marine & General Insurance Co. · filed 2017-11-08(a)(1)

Here, the Supreme Court properly granted that branch of Southwest’s motion which was pursuant to CPLR 3211 (a) (1), since the documentary evidence it submitted showed that Ralex undertook its own defense in the underlying action, agreed to settle the underlying action, and incurred defense costs without first obtaining Southwest’s consent.

Under subsection (a)(1), the affidavits, letters, and spreadsheets submitted here did not qualify as documentary evidence supporting dismissal.

Gorbatov v. Tsirelman · filed 2017-11-15(a)(1)

Further, the affidavits, letters, and spreadsheets submitted by the defendants in support of their motions did not constitute documentary evidence pursuant to CPLR 3211 (a) (1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]), and, in any event, did not conclusively establish a lack of legal malpractice or deception.

Section 3211 requires documentary evidence to conclusively establish a defense; a self-serving accounting that omits dated time entries does not suffice.

Gleyzerman v. Law Offices of Arthur Gershfeld & Associates, PLLC · filed 2017-10-12(a)(1)

Defendants failed to demonstrate conclusively that the value of the services they rendered in connection with the first and third retainers equals or exceeds the fees that plaintiffs paid. Their self-serving accounting, which identified the number of hours spent on tasks but not the dates on which the work was done and the time spent on each of those dates, does not constitute irrefutable, documentary evidence that no unearned fees remain.

Section 3211(a)(1) requires documentary evidence to resolve all factual issues and definitively dispose of the claim before dismissal is granted.

New York State Workers' Compensation Board v. Program Risk Management, Inc. · filed 2017-11-30(a)(1)

Even assuming that such report constituted documentary evidence for purposes of CPLR 3211 (a) (1), the opinions expressed therein did not “conclusively refute all of the claims asserted against [Regnier]” (New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD 3d 1589, 1594 [2017]). Accordingly, Supreme Court properly denied Regnier’s motion to the extent predicated on this report.

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.

Carbone v. US Bank National Ass'n · filed 2017-12-13(a)(1)

A motion pursuant to CPLR 3211 (a) (1) 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” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Carbone v Deutsche Bank Natl. Trust Co., 145 AD3d at 849; Jahan v U.S. Bank N.A., 127 AD3d 926 [2015]).

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

Divito v. Meegan · filed 2017-12-22(a)(1)

Turning to appeal No. 2 first, we conclude that the court properly dismissed the complaint pursuant to CPLR 3211 (a) (1). ... Here, defendant submitted documentary evidence, namely, the agreement, establishing that there were no issues of fact, and that the agreement conclusively disposed of plaintiffs claims.

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

Santostefano v. Middle Country Central School District · filed 2017-12-27(a)(1)

Here, the settlement agreement utterly refuted the plaintiff’s factual allegations and conclusively established a defense to the complaint as a matter of law.

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

Ortegas v. G4S Secure Solutions (USA) Inc. · filed 2017-12-28(a)(1)

Plaintiff’s employment application “utterly refutes” her discrimination claims and conclusively establishes defendants’ defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; CPLR 3211 [a] [1]).

Section 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense, while subsection (a)(7) requires the court to accept the pleaded facts as true and determine whether they state a cognizable claim.

Hershco v. Gordon & Gordon · filed 2017-11-29(a)(1), (a)(7)

A motion to dismiss on the basis of CPLR 3211 (a) (1) 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 413 Throop, LLC v Triumph, the Church of the New Age, 153 AD3d 1306, 1307 [2017]). On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]). ... Here, as the Supreme Court correctly determined, the allegations in the complaint are sufficient to state a cause of action against the appellants to recover damages for legal malpractice. Accordingly, the appellants were not entitled to dismissal under CPLR 3211 (a) (7). Moreover, the appellants were not entitled to dismissal under CPLR 3211 (a) (1). The documentary evidence they submitted, which included the orders of the District Court and the federal Court of Appeals, among other things, did not conclusively establish a defense to Hershco-United-Galit’s cause of action alleging legal malpractice.

On a motion to dismiss for failure to state a claim, the court liberally construes the complaint, accepts its factual allegations as true, gives the plaintiff every favorable inference, and asks whether the allegations fit a cognizable legal theory.

New York State Workers' Compensation Board v. Any-Time Home Care Inc. · filed 2017-12-07(a)(7)

In resolving these claims, “we must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true, confer on [plaintiff] the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory” (NYAHSA Servs., Inc., Self-Ins. Trust v Recco Home Care Servs., Inc., 141 AD3d 792, 794 [2016] [internal quotation marks and citations omitted]; accord New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d 1589, 1592 [2017]). Applying that standard here, we find no merit in the individual defendants’ contentions.

An ambiguous contract does not support preanswer dismissal before a full factual record establishes the parties’ intent.

Almah LLC v. AIG Empl. Servs., Inc. · filed 2018-01-02(a)(1), (a)(5)

If a contract is ambiguous, the complaint should not be "dismissed pre-answer before the development of a full factual record as to the parties' intent" ( Telerep, LLC v U.S. Intl. Media, LLC, 74 AD3d 401, 403 [1st Dept 2010]).

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.

Matter of Koegel · filed 2018-02-07(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, quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see CPLR 3211[a][1]; Held v Kaufman, 91 NY2d 425, 430-431; Parekh v Cain, 96 AD3d 812, [*5]815; Sato Constr. Co., Inc. v 17 & 24 Corp., 92 AD3d 934, 935-936).

Section 3211(a)(5) permits dismissal of a cause of action that cannot be maintained because of a release.

Sacchetti-Virga v. Bonilla · filed 2018-02-21(a)(5)

"In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff's allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light"

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

Exeter Law Group LLP v. Immortalana Inc. · filed 2018-02-22(a)(1)

The engagement letter does not conclusively establish that the services rendered by the firm were outside the scope of the engagement (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.

Gad v. Sherman · filed 2018-04-04(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 the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law' ( Feldshteyn v Brighton Beach 2012, LLC , 153 AD3d 670, 670, quoting Sabre Real Estate Group, LLC v Ghazvini , 140 AD3d 724, 724; see Hoeg Corp. v Peebles Corp ., 153 AD3d 607; 4777 Food Servs. Corp. v Anthony P. Gallo, P.C. , 150 AD3d 1054, 1055-1056).

A CPLR 3211 motion to dismiss is properly denied when the agreement does not conclusively establish a defense and the allegations present a cognizable breach of contract claim.

Quattro Parent LLC v. Zaki · filed 2018-04-10(a)(1) and (7)

Contrary to defendant's contention, the plain terms of the parties' agreement did not conclusively establish a defense that warrants dismissal of the complaint ( see Leon v Martinez , 84 NY2d 83, 87 [1994]; see Mill Fin. LLC v Gillett , 122 AD3d 98 [1st Dept 2014]; Taussig v Clipper Group, L.P., 13 AD3d 166, 167 [1st Dept 2004], lv denied 4 NY3d 707 [2005]). ... It is undisputed that defendant never made the $7,500,000 payment required by the terms of the parties' agreement, giving rise to a cognizable claim for breach of contract ( see e.g. Awards.com v Kinko's Inc. , 42 AD3d 178, 187 [1st Dept 2007], affd 14 NY3d 791 [2010]). ... Accordingly, defendant's pre-answer motion to dismiss the complaint was correctly denied.

CPLR 3211 permits dismissal based on documentary evidence that conclusively establishes a defense, but unresolved questions of fact bar dismissal under the statute.

Wang v. Ram · filed 2018-04-13(a)(1), (a)(7)

There was thus no basis for dismissing the action pursuant to CPLR 3211 (a) (1) based on documentary evidence. Neither defendant's submission of evidence that he had been outside of the United States when the listing agreement was signed, nor his hearsay denial of his son's activities, were adequate to conclusively establish his defense as a matter of law, since there remain questions of fact as to whether someone, acting with authority, signed defendant's name on his behalf on the listing agreement, or whether defendant subsequently ratified his purported signature on the listing agreement. The existence of these unresolved questions of fact barred the dismissal of the action pursuant to CPLR 3211 (a) (7).

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

REEC W. 11th St. LLC v. 246 W. 11th St. Realty Corp. · filed 2018-06-07(a)(1)

The documentary evidence establishes a defense to plaintiff's claims as a matter of law ( see Leon v Martinez , 84 NY2d 83, 88 [1994]; CPLR 3211[a][1]).

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

Matter of Spicer v. Spicer · filed 2018-06-20(a)(1)

Thus, based upon the documentary evidence submitted by the father, a contempt finding was unwarranted and the petition was properly dismissed ( see CPLR 3211[a][1]; O'Brien v O'Brien , 115 AD3d 720, 723).

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

SJS Thompson LLC v. Singer · filed 2018-06-28(a)(1)

Civil Court properly granted tenant's pre-answer motion to dismiss the holdover petition pursuant to CPLR 3211 (a)(1), since the documentary evidence conclusively established a defense to the holdover petition ( see Leon v Martinez , 84 NY2d 83, 88 [1994]).

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

Karpovich v. City of New York · filed 2018-06-27(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" ( Mawere v Landau , 130 AD3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

CPLR 3211(a)(5) permits dismissal when an action may not be maintained because of a release, with the complaint and opposing affidavit construed in the plaintiff's favor.

Fimbel v. Vasquez · filed 2018-07-05(a)(5)

In assessing a motion to dismiss on the ground that an action may not be maintained because of a release ( see CPLR 3211 [a] [5]), the allegations in the complaint "are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in [the plaintiff's] favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light" ( Ford v Phillips , 121 AD3d at 1234).

Section 3211(a)(5) permits dismissal of a claim barred by the statute of limitations.

Matter of Gjelaj v. DiFiore · filed 2018-07-05(a)(5)

Accordingly, that branch of respondent's motion which was to dismiss the petition filed December 7, 2015, was properly granted.

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.

Ira & Larry Weinstein, LLC v. Smart SMR of N.Y., Inc. · filed 2018-07-11(a)(1)

A motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1) 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; see Leon v Martinez, 84 NY2d 83, 88; Santostefano v Middle Country Cent. Sch. Dist., 156 AD3d 926, 928; Hershco v Gordon & Gordon, 155 AD3d 1007, 1008).

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

Matter of Elberg · filed 2018-08-01(a)(1)

A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence [*2]may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" ( 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

CPLR 3211(a)(5) permits dismissal when a release bars the action.

Herson v. Kirschenfeld · filed 2018-08-01(a)(5)

We agree with the Supreme Court's determination that the amended complaint was subject to dismissal pursuant to CPLR 3211(a)(5).

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.

Never Used Cars, LLC v. Nat Hoe Equities Corp. · filed 2018-08-08(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" ( Wells Fargo Bank N.A. v E & G Dev. Corp., 138 AD3d 986, 987 [internal quotation marks omitted]). Here, we agree with the Supreme Court's determination that the documentary evidence conclusively established that no valid bid for $950,000 was made at the auction on behalf of the plaintiff.

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.

First Choice Plumbing Corp. v. Miller Law Offs., PLLC · filed 2018-08-22(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 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; see Leon v Martinez , 84 NY2d 83, 88).

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

Tyree v. Castrovinci · filed 2018-09-19(a)(1)

We agree with the Supreme Court's determination to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint. "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" ( Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

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

A. N. v. Roman Catholic Diocese of Rockville Ctr. · filed 2018-10-17(a)(1)

Dismissal 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 utterly refutes the plaintiff's factual allegations, and conclusively disposes of the plaintiff's claims as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Held v Kaufman , 91 NY2d 425, 430-431; Pasquaretto v Long Is. Univ ., 106 AD3d 794; Parekh v Cain , 96 AD3d 812, 815; Sato Constr. Co., Inc. v 17 & 24 Corp ., 92 AD3d 934, 935-936).

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

Intrepid Invs., LLC v. Selling Source, LLC · filed 2018-10-18(a)(1)

Contrary to the court's ruling, the document is an agreement at arm's length, not merely a letter, and thus establishes conclusively that the loan was never "paid off" and that section 5(a) continued to apply to junior lenders, such as plaintiff ( see Nanto MK Corp. v J & E Realty , 147 AD3d 695 [1st Dept 2017]; CPLR 3211[a][1]).

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

Gulfstream Anesthesia Consultants, P.A. v. Cortland Regional Med. Ctr., Inc. · filed 2018-10-18(a)(1)

CPLR 3211 (a) (1) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . a defense is founded upon documentary evidence." "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" ( Phillips v Taco Bell Corp. , 152 AD3d 806, 806 [2017] [internal quotation marks and citations omitted]; see Kolchins v Evolution Mkts, Inc. , 31 NY3d 100, 106 [2018]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

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.

Calhoun v. Midrox Ins. Co. · filed 2018-10-18(a)(1)

A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if "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 Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 106 [2018]).

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

Wansdown Props. Corp., N v. v. Azari · filed 2018-10-23(a)(1)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered October 24, 2017, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, without costs, and the motion granted. ... The documentary evidence refutes plaintiff's claim that Golsorkhi lacked authority.

Section 3211(a)(1) does not permit summary dismissal when facts essential to the relevant analysis remain in dispute.

Matter of Jaimes v. Gyerko · filed 2018-10-24(a)(1)

The Family Court should not have granted the relief requested by the mother and summarily dismissed the petition pursuant to CPLR 3211(a)(1).

Section 3211(a)(1) does not permit dismissal when the movant has not conclusively demonstrated the facts supporting dismissal.

Matter of Blango · filed 2018-11-14(a)(1)

However, inasmuch as the appellant did not conclusively demonstrate these facts, it was not entitled to dismissal of the proceeding.

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.

Route 202 Rest., LLC v. Old Crompond Rd., LLC · filed 2018-11-28(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, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). Here, the contract was ambiguous as to whether the defendant was required to provide an HVAC unit, and thus, did not utterly refute the factual allegations of the complaint and conclusively establish a defense to the complaint as a matter of law ( see Blum v Rosenberg , 120 AD3d 529, 530).

Section 3211(a)(1) permits dismissal when documentary evidence provides a proper basis for dismissal.

Somerset Fine Home Bldg., Inc. v. Simplex Indus., Inc. · filed 2018-12-14(a)(1)

As a term of the contract between the parties, however, the contractual forum-selection clause is documentary evidence that may provide a proper basis for dismissal under CPLR 3211 (a) (1) (Id. at 123).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's allegations.

William Doyle Galleries, Inc. v. Stettner · filed 2018-12-20(a)(1)

As to the branch of HSBC's motion under CPLR 3211(a)(1), the only documentary evidence relied upon by HSBC is the letter it provided to plaintiff. The letter does not "utterly refute["] plaintiff's allegations as to the causes of action for aiding and abetting fraud or aiding or abetting conversion (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the plaintiff's claims, while allegations are accepted as true on a motion to dismiss.

Talmadge v. Roman Catholic Diocese of Albany, N.Y. · filed 2018-12-27(a)(1)

This allegation is accepted as true on a motion to dismiss, and defendants attempted to defeat "[t]he liberal construction and favorable inferences to which . . . plaintiff is entitled" by showing that plaintiff's claims were "conclusively refuted by documentary evidence" ( Vestal v Pontillo , 158 AD3d 1036 , 1038 [2018]; see CPLR 3211 [a] [1]; Simkin v Blank , 19 NY3d 46 , 52 [2012]; Keehle v Diocese of Syracuse , 80 AD3d 974 , 974 [2011]). The proffered documentary evidence did nothing of the sort and, indeed, a certificate of liability insurance that was obtained for the relevant event and named the diocese as an additional insured suggested some degree of diocesan supervision and control over the parish.

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

Lilley v. Greene Cent. Sch. Dist. · filed 2019-01-03(a)(1)

Further, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Meyer v Zucker , 160 AD3d 1243, 1245 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 NY3d 905 [2018]; accord Trask v Tremper Prop. Assn., Inc. , 122 AD3d 1206, 1207 [2014]).

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

Lerner v. Lerner · filed 2019-01-09(a)(1)

Furthermore, the Family Court properly determined that the Support Magistrate should have denied the father's motion pursuant to CPLR 3211(a)(1) to dismiss so much of the petition as sought child care expenses for the period from June 25, 2016, to August 13, 2016, when the children were at sleep-away camp. "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, quoting Fortis Fin. Servs. v Fimat Futures USA , 290 AD2d 383, 383). Here, the parties' stipulation was ambiguous as to whether the father was required to pay child care expenses when the children were attending sleep-away camp.

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense, while CPLR 3211(a)(7) requires accepting pleaded facts as true and determining whether they fit a cognizable legal theory.

Belling v. City of Long Beach · filed 2019-01-23(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211, the complaint is to be afforded a liberal construction. "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" ( Mendelovitz v Cohen , 37 AD3d 670, 670; see Henn v City of New York , 164 AD3d 766, 766; Torres v City of New York , 153 AD3d 647, 648). In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88; Sokol v Leader , 74 AD3d 1180, 1181).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively shows that the petitioner is not entitled to the relief sought.

Matter of Berg v. Planning Bd. of the City of Glen Cove · filed 2019-02-06(a)(1)

Accordingly, the documentary evidence conclusively demonstrates that the petitioners are not entitled to the relief that they seek in this regard ( see CPLR 3211[a][1]; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63; L.J. Sta. Group, LLC v Quantek Media, LLC , 62 AD3d 487, 491-492).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while section 3211(a)(7) permits dismissal for failure to state a cause of action.

Kalaj v. 21 Fountain Place, LLC · filed 2019-02-06(a)(1) and (a)(7)

Contrary to the defendants' contention, various emails and text messages between the plaintiff and the defendant David Roth, as well as an affirmed statement of the prospective buyer, were not documentary evidence, and thus should not have been considered pursuant to CPLR 3211(a)(1) ( see Anderson v Armentano , 139 AD3d at 771; Eisner v Cusamano Constr., Inc., , 132 AD3d 940, 942; Granada Condominium III Assn. v Palomino , 78 AD3d 996, 997; Fontanetta v John Doe 1 , 73 AD3d at 84-85; Cives Corp. v George A. Fuller Co., Inc. , 47 AD3d at 714). ... Thus, the defendants failed to establish that the complaint should be dismissed pursuant to CPLR 3211(a)(1). ... A court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ( see Sokol v Leader , 74 AD3d 1180, 1181) and, in that case, "the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Agai v Liberty Mut. Agency Corp. , 118 AD3d 830, 832). ... Accordingly, the Supreme Court should have denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

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

Tozzi v. Mack · filed 2019-02-21(a)(1)

The option agreement, the correction rider, and the emails constitute documentary evidence which utterly refutes plaintiffs' factual allegations and conclusively establishes a defense as a matter of law ( see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 432-433 [1st Dept 2014]; Schutty v Speiser Krause P.C. , 86 AD3d 484, 484—485 [1st Dept 2011]).

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

L.Y.E. Diamonds, Ltd. v. Gemological Inst. of Am., Inc. · filed 2019-02-26(a)(1)

The motion court correctly dismissed, pursuant to CPLR 3211(a)(1), the defamation and trade libel causes of action on the ground that the statements at issue were protected by a qualified privilege ( see Baines v Daily News, L.P. , 51 Misc 3d 229 [Sup Ct, NY County 2015] [defamation complaint may be dismissed pursuant to CPLR 3211(a)(1) on documentary evidence establishing privilege defense as matter of law]; see also Rodriguez v Daily News, L.P. , 142 AD3d 1062 [2d Dept 2016], lv denied 28 NY3d 913 [2017]; Saleh v New York Post , 78 AD3d 1149 [2d Dept 2010], lv denied 16 NY3d 714 [2011]; compare Fletcher v Dakota, Inc. , 99 AD3d 43, 55-56 [1st Dept 2012] ["we would not give conclusive effect to defendants' position of qualified privilege before any affirmative defense to that effect was raised in a responsive pleading"] [internal quotation marks omitted]; but see Matter of Abbitt v Carube , 159 AD3d 408, 410 [1st Dept 2018] [granting motion to dismiss libel claim on pleadings because petitioner's allegation of malice was "conclusory and therefore insufficient to overcome the privilege"]).

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

Keld v. Giddins Claman, LLP · filed 2019-03-26(a)(1)

The retainer agreement entered into by plaintiff and defendant law firm constitutes documentary evidence which utterly refutes plaintiff's claims ( see generally Leon v Martinez , 84 NY2d 83, 88 [1994]; CPLR 3211[a][1]).

Section 3211(a)(1) permits dismissal when a defendant asserts a defense founded on documentary evidence, subject to standards for qualifying evidence and conclusively establishing the defense.

VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC · filed 2019-03-28(a)(1)

A motion to dismiss may be granted if the defendant asserts "a defense . . . founded upon documentary evidence" (CPLR 3211[a][1]). A paper will qualify as "documentary evidence" only if it satisfies the following criteria: (1) it is "unambiguous"; (2) it is of "undisputed authenticity"; and (3) its contents are "essentially undeniable" ( Fontanetta v John Doe 1 , 73 AD3d 78, 86, 87 [2d Dept 2010], citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21—22). A court may not dismiss a complaint based on documentary evidence unless "the factual allegations are definitively contradicted by the evidence or a defense is conclusively established" ( Yew Prospect v Szulman , 305 AD2d 588, 589 [2d Dept 2003]; see Leon v Martinez , 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations.

Galway Co-Op.Com, LLC v. Niagara Mohawk Power Corp. · filed 2019-04-04(a)(1)

Based on the foregoing, defendant established that the documentary evidence utterly refuted plaintiff's factual allegations ( see CPLR 3211 [a] [1]; Crepin v Fogarty , 59 AD3d 837, 839 [2009]; see generally Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 106 [2018]) and, therefore, Supreme Court correctly granted defendant's pre-answer motion to dismiss.

CPLR 3211(a)(1) and (7) require dismissal based on documentary evidence only when that evidence utterly refutes the claims or conclusively establishes a defense.

Malloy v. Tartir · filed 2019-04-05(a)(1) and (7)

We find that it was error for the court to dismiss plaintiff's causes of action for breach of the escrow agreement and breach of fiduciary duty on documentary evidence pursuant to CPLR 3211(a)(1) and (7). The documentary evidence relied upon by defendant failed to "utterly refute[]" plaintiff's claims of improper disbursement of escrow funds ( Goshen v Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 [2002]; see also Leon v Martinez , 84 NY2d 83, 88 [1994]), nor did it conclusively establish that plaintiff had an obligation to remove all the ECB violations and civil penalties issued against an Atlantic Avenue property referenced in the title report that was never owned by plaintiff, or explicitly listed by either street address or block and lot number within the escrow agreement ( see generally Sasidharan v Piverger , 145 AD3d 814 [2016]; Takayama v Schaefer , 240 AD2d 21, 25 [1998]).

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.

Feggins v. Marks · filed 2019-04-17(a)(1)

A motion to dismiss based on documentary evidence may appropriately 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; see Leon v Martinez , 84 NY2d at 88; Lucia v Goldman , 68 AD3d 1064, 1065; Mazur Bros. Realty, LLC v State of New York , 59 AD3d 401, 402).

Section 3211 permits dismissal when documentary evidence conclusively establishes a defense or when the pleading fails to state a cause of action.

Omar v. Moore · filed 2019-04-26(a)(1) and (a)(7)

Contrary to defendants' further contention, we conclude that dismissal of the unjust enrichment cause of action is not warranted based on documentary evidence inasmuch as the receipts in question do not "conclusively establish[ ]" that defendants did not receive payments from plaintiff ( Leon v Martinez , 84 NY2d 83, 88 [1994]; see generally Georgia Malone & Co., Inc. v Rieder , 19 NY3d 511, 516 [2012]). Moreover, defendants' contention that plaintiff's unjust enrichment claim is barred under the doctrine of unclean hands involves an issue of fact " that cannot be resolved on [a pre-answer] motion to dismiss' " ( Cohen & Lombardo, P.C. v Connors , 169 AD3d 1399, 1401 [4th Dept 2019]) .