N.Y. C.P.L.R. § 3211

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

Koziatek v. SJB Dev. Inc. · filed 2019-05-02(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.

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

Mello v. Long Is. Vitreo-Retinal Consultant, P.C. · filed 2019-05-08(a)(5)

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Ophthalmic Consultants of Long Island and Robert Broderick which were pursuant to CPLR 3211(a)(5) to dismiss so much of the amended complaint as alleged acts of medical malpractice occurring on February 25, 2011, and July 15, 2011, insofar as asserted against them as time-barred, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs payable to the defendants Ophthalmic Consultants of Long Island and Robert Broderick.

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

Bayview Loan Servicing, LLC v. Windsor · filed 2019-05-08(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Jesmer v Retail Magic, Inc. , 55 AD3d 171, 180; Prudential Wykagyl/Rittenberg Realty v Calabria-Maher , 1 AD3d 422).

CPLR 3211(a)(5) permits dismissal of a cause of action when it is barred by the statute of limitations.

Federal Natl. Mtge. Assn. v. Schmitt · filed 2019-05-29(a)(5)

Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while section 3211(a)(7) requires the complaint to be liberally construed and its allegations presumed true.

Silvergrove Advisors, LLC v. Crosswing Holdings LLC · filed 2019-06-06(a)(1) and (7)

Liberally construing the complaint and presuming the allegations to be true ( see 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 151-152 [2002]), we find that the complaint colorably alleges that a line of credit (LOC) acquired by Superior constitutes "Consideration" for purposes of calculating plaintiff's success fee under the engagement agreement. ... Defendants failed to identify any documentary evidence or undisputed facts that conclusively establish a defense ( see Zanett Lombardier, Ltd. v Maslow , 29 AD3d 495 [1st Dept 2006]). ... Hence, the issue cannot be resolved on this motion on the pleadings.

Section 3211(a)(5) permits dismissal of a claim as time-barred.

Weckbecker v. Skanska USA Civ. Northeast, Inc. · filed 2019-06-12(a)(5)

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the separate motions of the defendants URS Corporation/Malcolm Pirnie, Inc., a Joint Venture, and Sound Environmental Associates, LLC, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against each of them as time-barred are granted.

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

Hernandez v. Florian · filed 2019-06-26(a)(1)

In addition, the documentary evidence submitted by the defendant did not utterly refute the plaintiff's allegations, and did not conclusively establish a defense to the claims as a matter of law ( see CPLR 3211[a][1]; Bodden v Kean , 86 AD3d 524, 526).

CPLR 3211(a)(5) permits dismissal when the claim is barred by the statute of limitations.

HSBC Bank, N.A. v. Vaswani · filed 2019-07-03(a)(5)

Accordingly, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5), in effect, to dismiss the action insofar as asserted against them should have been granted.

CPLR 3211(a)(5) permits dismissal of a complaint in whole or in part based on a release.

Webster v. Forest Green Apt. Corp. · filed 2019-07-10(a)(5)

A defendant may move to dismiss a complaint in whole or in part based on release ( see CPLR 3211[a][5]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, and CPLR 3211(a)(2) permits dismissal for lack of subject matter jurisdiction.

Eltingville Lutheran Church v. Rimbo · filed 2019-07-31(a)(1), (a)(2)

Accordingly, we agree with the Supreme Court's determination to grant those branches of the defendants' motion which were to dismiss the first three causes of action as nonjusticiable pursuant to CPLR 3211(a)(2). ... Therefore, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was to dismiss the fourth cause of action pursuant to CPLR 3211(a)(1).

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.

Glenwayne Dev. Corp v. James J. Corbett, P.C. · filed 2019-08-07(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes 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 Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63; Leon v Martinez , 84 NY2d 83, 88).

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

Town of Mexico v. County of Oswego · filed 2019-08-22(a)(1)

A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]"

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

Buchovecky v. S & J Morrell, Inc. · filed 2019-08-22(a)(1)

A motion to dismiss a counterclaim pursuant to CPLR 3211 (a) (1) will be granted if "the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of [defendant's] claim[s]" ( Baumann Realtors, Inc. v First Columbia Century—30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014] [internal quotation marks omitted]; see Murnane Bldg. Contrs., LLC v Cameron Hill Constr., LLC , 159 AD3d 1602, 1603 [4th Dept 2018]).

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

Herzl Dev. Group, LLC v. Federal Natl. Mtge. Assn. · filed 2019-08-28(a)(1)

Here, the documentary evidence submitted by the defendant conclusively demonstrated that the debt was not accelerated either by the May 17, 2007, notice of default or by the complaint in the 2007 foreclosure action, as the plaintiff herein alleged. ... Accordingly, we agree with the Supreme Court's determination granting the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.

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

Carew v. Baker · filed 2019-09-18(a)(5)

"A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release" (CPLR 3211[a][5]). ... Accordingly, the release executed by the plaintiff should be enforced according to its terms. Under these circumstances, that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a) was properly granted.

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

US Bank Natl. Assn. v. Hunte · filed 2019-10-09(a)(1)

We agree with the Supreme Court's determination to deny those branches of the Hunte defendants' cross motion which were pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them based on the plaintiff's alleged failure to comply with RPAPL 1303 and to cancel the notice of pendency. "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" ( Golia v Vieira , 162 AD3d 865, 867 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). Here, the evidence submitted by the Hunte defendants did not conclusively establish that the plaintiff failed to comply with RPAPL 1303.

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

Seaman v. Schulte Roth & Zabel LLP · filed 2019-10-17(a)(1)

Under CPLR 3211(a)(1), dismissal "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 Leon v Martinez , 84 NY2d at 88).

CPLR 3211(a)(1) permits dismissal of a counterclaim only when documentary evidence utterly refutes its factual allegations and conclusively disposes of it as a matter of law.

JPMorgan Chase Bank, N.A. v. Klein · filed 2019-12-11(a)(1)

A motion pursuant to CPLR 3211(a)(1) to dismiss a counterclaim may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations underlying the counterclaim and conclusively disposes of the counterclaim as a matter of law ( see Shah v Mitra , 171 AD3d 971, 973).

CPLR 3211(a)(5) permits dismissal when a release unambiguously discharges the defendant from the claims asserted.

Sandomirsky v. Velasquez · filed 2020-01-02(a)(5)

A plain reading of the release between plaintiff and Velasquez's insurer, nonparty GEICO General Insurance Company (GEICO), unambiguously reveals that plaintiff released and discharged defendant Velasquez from any claims arising out of the October 16, 2017 motor vehicle accident. ... Accordingly, plaintiff's complaint against Velasquez for injuries sustained in the accident should have been dismissed pursuant to CPLR 3211(a)(5) ( see generally Bernard v Sayegh , 104 AD3d 600 [1st Dept 2013]).

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.

Gorunkati v. Baker Sanders, LLC · filed 2020-01-22(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" ( Garcia v Polsky, Shouldice & Rosen, P.C. , 161 AD3d 828, 829 [internal quotation marks omitted]; see Gould v Decolator , 121 AD3d 845, 847). Here, the documentary evidence submitted by Baker Sanders in support of its motion did not utterly refute the plaintiff's allegations.

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

Leavitt Enter., Inc. v. Two Fulton Sq., LLC · filed 2020-03-11(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" ( Gould v Decolator , 121 AD3d 845 , 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88).

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

MJK Bldg. Corp. v. Fayland Realty, Inc. · filed 2020-03-25(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; see Leon v Martinez , 84 NY2d at 88). ... Here, the defendants utterly refuted the plaintiffs' claim to an express easement arising from the deed originally conveying the parcel to their east by showing that the subject property did not benefit from the easement, and that the owners of the parcels that did benefit from the easement validly terminated it by agreement in 1977.

Section 3211(a)(5) permits dismissal of claims barred by a valid release.

Cames v. Craig · filed 2020-03-25(a)(5)

Accordingly, the Supreme Court should have granted Craig's renewed motion pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross claims insofar as asserted against him.

Under CPLR 3211(a)(1), documentary evidence warrants dismissal when it conclusively resolves the factual issues and disposes of the plaintiff's claims.

Maple-Gate Anesthesiologists, P.C. v. Nasrin · filed 2020-04-24(a)(1)

"A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]" ( Lots 4 Less Stores, Inc. v Integrated Props., Inc. , 152 AD3d 1181, 1182 [4th Dept 2017] [internal quotation marks omitted]). Here, contrary to plaintiff's contention, the court properly granted the motion because the documentary evidence established as a matter of law that plaintiff had no legal or equitable right [*2]of ownership to the demutualization payments ( see La Barte v Seneca Resources Corp. , 285 AD2d 974, 976 [4th Dept 2001]; Di Siena v Di Siena , 266 AD2d 673, 674 [3d Dept 1999]; see generally Mandarin Trading Ltd. v Wildenstein , 16 NY3d 173, 182 [2011]; Colavito v New York Organ Donor Network, Inc. , 8 NY3d 43, 49-50 [2006]).

Section 3211(a)(1) permits dismissal when governing documents flatly contradict the claims.

MacArthur Props. I, LLC v. Galbraith · filed 2020-04-30(a)(1)

The motion court properly dismissed plaintiff's claims relating to the prospective change to the allocation of common charges based on plaintiff's percent of the common interest, beginning with the 2017 budget, as flatly contradicted by the condominium's governing documents and RPL § 339-m (CPLR 3211[a][1]).

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

Bullen v. Sterling Valuation Group, Inc. · filed 2020-06-05(a)(1)

Applying the 3211 standard on a motion to dismiss, the Court finds the allegations in the Amended Complaint state the three causes of action with sufficient particularity, and Sterling has not submitted any documentary evidence establishing its defense as a matter of law.

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

Irma Straus Realty Corp. v. Old Republic Natl. Tit. Ins. Co. · filed 2020-06-12(a)(1)

A dismissal of a complaint pursuant to CPLR 3211 (a) (1) is warranted 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 only when documentary evidence conclusively resolves the complaint’s factual allegations.

Carey v. Manhattan Coll. · filed 2020-06-17(a)(1)

A motion to di mi ss pur uant to CPLR § 321 I (a)(l) should be gra nted only where the documentary evidence submitted absolutely reso lves all factual allegations made in the plaintift' complai nt.

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.

Pascazi v. Stormville 120, LLC · filed 2020-06-24(a)(1)

A CPLR 3211(a)(1) motion may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d 83, 88; Natoli v NYC Partnership Hous. Dev. Fund Co., Inc. , 103 AD3d 611, 612).

Section 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense; affidavits are not documentary evidence under this provision.

Pirozzi v. Garvin · filed 2020-07-15(a)(1)

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 314; Leon v Martinez , 84 NY2d 83, 83). Here, the defendants' own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Granada Condominium III Assn. v Palomino , 78 AD3d 996, 997), and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff's factual allegations.

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

Twinkle Play Corp. v. Alimar Props., Ltd. · filed 2020-09-16(a)(1)

Here, the evidence submitted by the defendant either was not "documentary" within the meaning of CPLR 3211(a)(1) or failed to conclusively establish a defense to the third cause of action as a matter of law ( see Neckles Bldrs., Inc. v Turner , 117 AD3d at 925).

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.

Duncan v. Emerald Expositions, LLC · filed 2020-09-16(a)(1)

Dismissal was not warranted pursuant to CPLR 3211(a)(1), as the documentary evidence that Freeman Company submitted did not "utterly refute[ ] the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Mendelovitz v Cohen , 37 AD3d at 670).

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

189 Schermerhorn Owners Co., LLC v. Board of Mgrs. of the Be@Schermerhorn Condominium · filed 2020-09-23(a)(1)

As to the breach of contract cause of action, "[t]o 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). Here, the Condominium offering plan, declaration, and bylaws (hereinafter collectively the governing documents) utterly refuted the plaintiff's factual allegations and conclusively established a defense as a matter of law to the breach of contract cause of action.

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.

Panday v. Allen · filed 2020-10-07(a)(1)

We agree with the Supreme Court's determination denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. ... Thus, the deed did not utterly refute the plaintiffs' allegations and conclusively establish a defense as a matter of law.

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.

Kaur v. Lema · filed 2020-10-14(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 movants utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law ( see Fox Paine & Co., LLC v Houston Cas. Co. , 153 AD3d 673, 677, citing Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

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

Citibank N.A. v. Burns · filed 2020-10-14(a)(1)

Here, Louis's submissions failed to demonstrate that either the plaintiff or its predecessor in interest had any notice of Louis's interest in the subject property or the existence of his agreement with Stephanie. Thus, he failed to resolve all factual issues as a matter of law and did not conclusively dispose of the plaintiff's claim.

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

La Scoula D'Italia Guglielmo Marconi v. Gates Capital Corp. · filed 2020-10-20(a)(1)

A CPLR 3211(a)(1) motion to dismiss will be granted where the "documentary evidence submitted conclusively establish[es] a defense to the asserted claims as a matter of law" ( Spoleta Constr. LLC v Aspen Ins. UK Ltd., 27 NY3d 933, 936 [2016]).

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

534 K, LLC v. Flagstar Bank, FSB · filed 2020-10-21(a)(1)

To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Bayview Loan Servicing, LLC v Windsor , 172 AD3d 799, 801). ... The Supreme Court therefore properly granted that branch of Flagstar's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

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

ECD NY Inc. v. 616 First Ave. Dev. LLC · filed 2020-10-22(a)(1)

A CPLR 3211(a)(1) motion "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). ... However, the documentary evidence they submitted does not establish this.

CPLR 3211(a)(1) does not require dismissal when the documentary evidence leaves open the possibility that the defendant owed the plaintiff a duty of care.

Katz v. Siano · filed 2020-10-27(a)(1)

While the parties entered into a written retainer agreement stating that the legal representation was for the criminal matter, on this motion to dismiss the written retainer does not eliminate any possibility that defendant owed plaintiff a duty of care in connection with legal advice he had given and was continuing to give regarding the separate civil matter, insofar as plaintiff relied upon it within that matter rather than in the criminal matter ( see Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC , 157 AD3d 479, 482 [1st Dept 2018]). Accordingly, there is no documentary evidence here sufficient to require dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(1) ( see IMO Indus. v Anderson Kill & Olick , 267 AD2d 10 [1st Dept 1999]).

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

Beach 50th St., LLC v. Peninsula Rockaway Ltd. Partnership · filed 2020-10-28(a)(1)

A motion to dismiss the complaint pursuant to CPLR 3211(a)(1) 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; see Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 106).

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

Eaglehill Genpar LLC v. FPCG, LLC · filed 2020-11-17(a)(1)

Where a motion seeks dismissal on the basis of documentary evidence, the complaint will not be dismissed unless the documentary evidence "conclusively refutes" the allegations ( see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]). ... Accordingly, the documentary evidence does not utterly refute the allegations in the first cause of action sounding in breach of contract.

Under CPLR 3211(a)(1), documentary evidence does not support dismissal when conflicting documents leave factual issues unresolved and do not conclusively dispose of the claim.

New York Mun. Power Agency v. Town of Massena · filed 2020-11-25(a)(1)

Their authenticity is not disputed, but as these documents provide sharply conflicting withdrawal procedures, and the parties disagree as to which document governs the proposed withdrawal, the documents do not resolve all factual issues as a matter of law, and do not conclusively dispose of plaintiff's claims.

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

Kollatz v. KOS Bldg. Group, LLC · filed 2020-11-25(a)(1)

Accordingly, the Contract of Sale, submitted by the defendants, utterly refuted the plaintiff's factual allegations concerning so much of the breach of contract cause of action as was predicated on alleged building code violations and served as a defense as a matter of law.

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

BT Holdings, LLC v. Village of Chester · filed 2020-12-02(a)(1)

"Moreover, a court may grant a motion to dismiss a complaint under CPLR 3211(a)(1) when documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law" ( McMahan v McMahan , 131 AD3d at 594; see CPLR 3211[a][1]). ... However, the unambiguous terms of the stipulations conclusively establish that they do not contain the terms alleged to have been breached.

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

Ferris v. Lustgarten Found. · filed 2020-12-09(a)(1)

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence 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 causes of action as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Air & Power Transmission, Inc. v Weingast , 120 AD3d 524, 524-525). Here, Lustgarten's submissions did not conclusively establish that it had fewer than 20 employees when the plaintiff reported the improper fundraising conduct ( see McCully v Jersey Partners, Inc. , 60 AD3d 562, 562; Gibraltar Steel Corp. v Gibraltar Metal Processing , 19 AD3d 1141, 1142).

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

Edward Horton Bldrs., Inc. v. Arch Specialty Ins. Co. · filed 2020-12-09(a)(1)

Accordingly, since Arch failed to submit documentary evidence conclusively establishing a defense as a matter of law, the Supreme Court should not have granted that branch of Arch's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

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

McDonald v. O'Connor · filed 2020-12-16(a)(1)

Since the moving defendants failed to utterly refute the plaintiff's allegations that the sellers breached the terms of the contract because they were unable to convey the entire interest in the property, the Supreme Court should have denied those branches of the moving defendants' motion seeking dismissal, in effect, of the causes of action in the amended complaint alleging breach of contract and a declaration of the rights of the parties vis-à-vis the property insofar as asserted against them ( see Bayview Loan Servicing, LLC v Windsor , 172 AD3d 799, 802; see also Benjamin v Yeroushalmi , 178 AD3d 650, 653).

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.

Cali v. Maio · filed 2020-12-23(a)(1)

Contrary to the determination of the Supreme Court, the defendants failed to establish that they were entitled to dismissal of the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(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" ( Gould v Decolator , 121 AD3d 845, 847; see Leon v Martinez , 84 NY2d 83, 88).

Under CPLR 3211(a)(1) and (7), an insurance policy can support dismissal when it conclusively refutes the allegations and establishes that the plaintiff has no cause of action.

Green v. National Income Life Ins. Co. · filed 2020-12-23(a)(1), (a)(7)

Here, the court properly dismissed that cause of action pursuant to CPLR 3211 (a) (1) and (7) inasmuch as the policy itself conclusively refutes plaintiff's allegations that defendant committed a deceptive act and conclusively establishes that plaintiff has no such cause of action ( see Barrett v Grenda , 154 AD3d 1275, 1278 [4th Dept 2017]; cf. Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326-327 [2002]; see also M & B Joint Venture, Inc. v Laurus Master Fund, Ltd. , 12 NY3d 798, 800 [2009]).

Section 3211(a)(1) permits dismissal when an unambiguous written agreement conclusively contradicts a claim.

County of Saratoga v. Delaware Eng'g., D.P.C. · filed 2020-12-24(a)(1)

Thus, the unambiguous terms of the indemnification agreement conclusively establish that Jett is not obliged to indemnify Delaware against plaintiffs' claims, and Jett's motion to dismiss Delaware's cross claim for contractual indemnification should have been granted ( see CPLR 3211 [a] [1]; Beal Sav. Bank v Sommer , 8 NY3d at 332; A Great Choice Lawncare & Landscaping, LLC v Carlini , 167 AD3d at 1363-1364; Maldonado v DiBre , 140 AD3d 1501, 1505-1507 [2016], lv denied 28 NY3d 908 [2016]; Thirty One Dev., LLC v Cohen , 104 AD3d at 1196-1197).

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

Gottesman Co. v. A.E.W, Inc. · filed 2021-01-14(a)(1)

The standard of review of a motion to dismiss pursuant to CPLR 3211(a)(1) is whether documentary evidence "conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 88 [1994]).

Under CPLR 3211(a)(1) and (7), dismissal is proper when documentary evidence shows that material facts alleged in the complaint are false and no significant dispute remains.

68 16th Realty, LLC v. Bank of N.Y. · filed 2021-01-20(a)(1), (a)(7)

Since documentary evidence before the Supreme Court demonstrated that material facts alleged in the complaint were not facts at all, and that no significant dispute existed regarding them ( Guggenheimer v Ginzburg , 43 NY2d at 275), the court properly granted those branches of the defendants' cross motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint ( see Mizrahi v US Bank, N.A. , 156 AD3d at 617-618; see generally Sharestates Invs., LLC v Hercules , 178 AD3d 1112, 1115).

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

Rosenbaum v. Myers · filed 2021-02-04(a)(1)

To prevail on a motion pursuant to CPLR 3211(a)(1) to dismiss a complaint, the defendant must show that the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law ( see e.g. AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. , 5 NY3d 582, 590-591 [2005]).

Documentary evidence does not warrant dismissal under CPLR 3211(a)(1) unless it utterly refutes the claim.

Mendler v. Jane-Horatio LLC · filed 2021-02-09(a)(1)

The documentary evidence submitted by the moving defendants did not "utterly refute" plaintiff's claim that Henry breached his contractual obligation when he ceased paying the maintenance fees in 2016 ( see generally Lezama v Cedano , 119 AD3d 479, 480 [1st Dept 2014]).

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

Matter of Korn · filed 2021-02-09(a)(1)

The Surrogate correctly dismissed the petition pursuant to CPLR 3211(a)(1) ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 432 [1st Dept 2014]). The documentary evidence utterly refutes petitioner's claims that his attorneys' services benefitted the general estate and not himself ( see Matter of Ajala , 117 AD3d 550 [1st Dept 2014]; Matter of Wallace , 68 AD3d 679, 680-681 [1st Dept 2009]).

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.

Oberlander v. Moore · filed 2021-02-24(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" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

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

Financial Assistance, Inc. v. Graham · filed 2021-02-24(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the 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; Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co. , 155 AD3d 800, 801).

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.

Hall v. Hobbick · filed 2021-03-10(a)(1)

"A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the 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)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Divito v. Glennon · filed 2021-04-30(a)(1)

We further conclude that the court properly granted defendants' motion to dismiss the complaint based on the documentary evidence. "A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]' " ( Baumann Realtors, Inc. v First Columbia Century-30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

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

Bisimwa v. St. John Fisher Coll. · filed 2021-05-07(a)(1)

We therefore conclude that the documentary evidence submitted in support of defendants' motion to dismiss failed to "utterly refute[] plaintiff's factual allegations" and thus did not "conclusively establish[ ] a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; see Town of Mexico , 175 AD3d at 878).

CPLR 3211(a)(1) requires the defendant to establish that documentary evidence warrants dismissal of the complaint.

Nationstar Mtge., LLC v. Retemiah · filed 2021-06-02(a)(1)

Furthermore, the Supreme Court properly denied that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him. ... In light of our determination on that appeal, the defendant has not established that this action should be dismissed based on documentary evidence.

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

U.S. Bank N.A. v. Jalas · filed 2021-06-03(a)(1)

It is well settled that a motion pursuant to CPLR 3211 (a) (1) "may only be granted where documentary evidence utterly refutes [plaintiff's] factual allegations, conclusively establishing a defense as a matter of law" ( Matter of Santander Consumer USA, Inc. v Kobi Auto Collision & Paint Ctr., Inc. , 183 AD3d 984, 987 [2020] [internal quotation marks and citation omitted]).

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

Wentworth v. Erie Ins. Co. · filed 2021-06-11(a)(1)

We agree with plaintiffs that Supreme Court erred in granting defendant's amended motion to dismiss the complaint against it based upon documentary evidence ( see CPLR 3211 [a] [1]). The documentary evidence submitted by defendant in support of the amended motion " 'failed to resolve all factual issues and conclusively dispose of [plaintiffs' cause of action] as a matter of law' " ( Calabro v General Ins. Co. of Am. , 23 AD3d 326, 326 [2d Dept 2005]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

A motion to dismiss under CPLR 3211 based on a release must be denied when the court cannot determine whether the release covers the claim.

Galster Rd. Props., LLC v. Penske Truck Leasing Co., L.P. · filed 2021-06-11

However, a motion pursuant to CPLR 3211 to dismiss a cause of action on the basis of a release must be denied where a court "cannot definitively determine whether the scope of a release was intended to cover the allegations in a complaint" ( Desiderio v Geico Gen. Ins. Co. , 107 AD3d 662, 663 [2d Dept 2013]; see also Kaprall v WE: Women's Entertainment, LLC , 74 AD3d 1151, 1152 [2d Dept 2010]).

Under CPLR 3211(a)(1), a landlord's documentary evidence must establish as a matter of law that no overcharge occurred to warrant dismissal of an overcharge counterclaim.

40-40-40-38 78th St., LLC v. Murillo · filed 2021-06-21(a)(1)

Here, the papers landlord furnished to the court are insufficient to prove, as a matter of law, that there was no overcharge ( see CPLR 3211 [a] [1]; see also CPLR 404, 409).

Section 3211(a)(1) permits dismissal when documentary evidence contradicts a conclusory claim.

Derringer v. F.G.G. Prods. Inc. · filed 2021-07-01(a)(1)

Plaintiffs' claim that Sony used their names and likenesses to promote sales of its recordings is conclusory and contradicted by the documentary evidence submitted on the motion to dismiss (CPLR 3211[a][1]).

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

Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco · filed 2021-08-04(a)(1)

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence may only 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; Leon v Martinez , 84 NY2d 83, 88; Bonavita v Government Empls. Ins. Co. , 185 AD3d 892).

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

D. S. v. Positive Behavior Support Consulting & Psychological Resources, P.C. · filed 2021-08-04(a)(1)

Here, the complaint adequately states a cause of action against the District, and the evidentiary materials submitted by the District did not conclusively establish that Silecchia was an independent contractor of the District ( see Vestal v Pontillo , 158 AD3d 1036, 1038; see also Hernandez v Chefs Diet Delivery, LLC , 81 AD3d 596, 599; cf. McHale v Metropolitan Life Ins. Co. , 165 AD3d at 916).

Under CPLR 3211(a)(1), documentary evidence must conclusively establish the relevant facts to support dismissal.

Glencore Ltd. v. Freepoint Commodities LLC · filed 2021-10-05(a)(1)

The documentary evidence did not conclusively establish that the LSFO defendant delivered in Houston met the specifications set forth in the purchase contract ( see generally CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

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

Friends of Wickers Cr. Archeological Site, Inc. v. Landing on the Water at Dobbs Ferry Homeowners Assn., Inc. · filed 2021-10-13(a)(1)

The defendant failed to proffer documentary evidence that utterly refuted 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 at 326-327; Hall v Hobbick , 192 AD3d 776, 778).

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

Matter of Lewis v. Dagostino · filed 2021-11-18(a)(1)

Dismissal of a petition under CPLR 3211 (a) (1) [FN5] "is appropriate where the documentary evidence utterly refutes the [petitioner's] allegations, conclusively establishing a defense as a matter of law" ( id. at 1234 [internal quotation marks and citation omitted]).

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

Birencwajg v. Compaore · filed 2021-12-02(a)(1)

The documentary evidence fails to demonstrate conclusively that the restaurant defendants were not Compaore's employers on the day of plaintiff's accident.

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

Singh v. Pliskin, Rubano, Baum & Vitulli · filed 2021-12-15(a)(1)

The documents submitted by the defendants do not utterly refute the factual allegations of the complaint and do not conclusively establish a defense to the plaintiffs' legal malpractice claim as a matter of law ( see CPLR 3211[a][1]; Cali v Maio , 189 AD3d 1337, 1338; Gorunkati v Baker Sanders, LLC , 179 AD3d 904, 906).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law; a claim that survives that showing remains pending.

Liberty Sq. Realty Corp. v. The Doe Fund, Inc. · filed 2021-12-21(a)(1)

"Dismissal under CPLR 3211(a)(1) is warranted 'only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law'" (id. at 152, quoting Leon v Martinez, 84 NY2d 83, 88 [1994]). Applying these standards to this case, for the reasons explained below, we conclude that the documentary evidence precludes as a matter of law all of plaintiff's property rights and easement claims, except the claim of easement by necessity.

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.

Recine v. Recine · filed 2022-01-19(a)(1)

To prevail on a CPLR 3211(a)(1) motion to dismiss on the ground that the action is barred by documentary evidence, a defendant must demonstrate that the proffered 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 Louzon v Gentry Apts., Inc ., 191 AD3d 776).

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

Chang v. Phillips Auctioneers LLC · filed 2022-03-03(a)(1)

The parties' agreements and other documentary evidence conclusively establish a defense to the breach of contract claim (CPLR 3211[a][1]; see Leon v Martinez , 84 NY2d 83, 88 [1994]; Ark Bryant Park Corp. v Bryant Park Restoration Corp. , 285 AD2d 143, 150 [1st Dept 2001]).

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.

BCI Constr., Inc. v. Board of Educ., Washingtonville Cent. Sch. Dist. · filed 2022-03-09(a)(1)

A motion to dismiss a cause of action 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 ( see Arnell Constr. Corp. v New York City Sch. Constr. Auth. , 177 AD3d at 597).

On a CPLR 3211 motion, evidence must conclusively connect the claims to an account agreement to support dismissal based on that agreement.

Amba Capital Ventures, Inc. v. Farrell · filed 2022-03-24

The limited evidence submitted on the CPLR 3211 motion does not establish conclusively that Farrell's allegedly predatory banking practices and "hard money" loans, and Signature's alleged negligent oversight of them, arise from or relate to the account agreements.

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

Balay v. Manhattan 140 LLC · filed 2022-04-14(a)(1)

The court should not have granted the Owner's cross motion to dismiss based on documentary evidence because the evidence submitted by Owner did not conclusively establish a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; CPLR 3211[a][1]).

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

Matter of Testani v. Russell & Russell, LLC · filed 2022-04-21(a)(1)

In order to obtain dismissal of this claim pursuant to CPLR 3211 (a) (1), defendants were required to submit documentary evidence utterly refuting the factual allegations underlying the claim and conclusively disposing of it as a matter of law ( see Shah v Mitra , 171 AD3d 971, 973 [2019]).

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

Frydco Capital Group, LLC v. Carlton Fields, P.A. · filed 2022-04-21(a)(1)

In addition, the legal malpractice claims should have been dismissed pursuant to CPLR 3211(a)(1). Defendants submitted documentary evidence, including the purchase agreement for the property and the seller's partial assignment of its interests in that agreement, that refutes plaintiffs' allegations that the seller's alleged breach of the purchase agreement prevented the closing from occurring, resulting in plaintiffs' loss of the increased value of the property ( see Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C. , 157 AD3d 467, 467 [1st Dept 2018]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense.

Panwest NCA2 Holdings LLC v. Rockland NCA2 Holdings, LLC · filed 2022-05-19(a)(1)

To the extent that defendant relies on the pond surveyor's May 2019 email and its reference to the report as "preliminary," the email does not utterly refute plaintiff's allegations that defendant knew about the impending need for the pond's remediation to warrant dismissal pursuant to CPLR 3211(a)(1) ( see generally Art & Fashion Group Corp. v Cyclops Prod., Inc. , 120 AD3d 436, 438 [1st Dept 2014]).

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.

Moreno v. AZ Metro Distribs., LLC · filed 2022-05-25(a)(1)

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

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

Goldman v. Nationstar Mtge., LLC · filed 2022-05-25(a)(1)

Under CPLR 3211(a)(1), a dismissal is warranted only if "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 at 326; see Leon v Martinez , 84 NY2d at 88). Here, in support of its cross motion, the defendant relied upon the purported loan modification agreement dated March 4, 2009. This document, however, failed to utterly refute the plaintiffs' factual allegations and conclusively establish its defense as a matter of law. The defendant failed to demonstrate that the purported modification agreement was executed by both parties, and became a permanent modification to the original loan. The plaintiffs contend that the subject agreement was a trial loan modification that never became permanent, pointing to the fact that the agreement was not signed by the lender, though a space was provided for the same. Moreover, on its cross motion, the defendant submitted a number of loan servicing documents that showed that the defendant had continued to service the original loan and not the purportedly modified loan. Accordingly, the Supreme Court properly denied the defendant's cross motion pursuant to CPLR 3211(a) to dismiss the complaint.

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

Ruffino v. Serio · filed 2022-06-08(a)(1)

"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Financial Assistance, Inc. v Graham , 191 AD3d 952, 954; 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 plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

Minzer v. Rauch · filed 2022-06-08(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" ( Hall v Hobbick , 192 AD3d 776, 777 [internal quotation marks omitted]); see Berkovits v Berkovits , 190 AD3d 911, 915; Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328).

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

U.S. Bank N.A. v. Kahn Prop. Owner, LLC · filed 2022-06-15(a)(1)

Dismissal of a complaint based upon a defense founded upon documentary evidence 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 ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Giambrone v Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco , 197 AD3d 459, 461; Bonavita v Government Empls. Ins. Co. , 185 AD3d 892, 893).

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

LNV Corp. v. Allison · filed 2022-06-08(a)(1)

"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" ( Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , _____ AD3d _____, _____, 2022 NY Slip Op 02994, *1 [2d Dept]). Here, the bare denial of receipt of a RPAPL 1304 notice, without more, as set forth in the defendant's affidavit, was insufficient to meet this burden ( see Christiana Trust v Moneta , 186 AD3d 1604, 1607; Citibank, N.A. v Conti-Scheurer , 172 AD3d 17).

CPLR 3211(a)(1) permits dismissal when a written agreement’s clear terms utterly refute the complaint’s allegations.

Hylan Ross, LLC v. 2582 Hylan Blvd. Fitness Group, LLC · filed 2022-06-22(a)(1)

Accordingly, the clear terms of the lease utterly refute the plaintiff's allegation that the tenant improperly terminated the lease ( see Ira & Larry Weinstein, LLC v Smart SMR of N.Y., Inc. , 163 AD3d 641, 642). ... Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

A defendant seeking dismissal under CPLR 3211(a)(5) based on a release must establish prima facie that the release was intended to cover the claims asserted.

Patos v. Long Is. Living Ctr., LLC · filed 2022-08-17(a)(5)

Here, Long Island Living Center failed to establish, prima facie, that the release executed by the parties settling the personal injury action, which expressly stated that it was a "RELEASE FOR PERSONAL INJURY CLAIM," was intended to preclude Patos's present claims, including to recover unpaid wages ( see CPLR 3211[a][5]; Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. , 17 NY3d at 276; Davis v Farrell Fritz, P.C. , 201 AD3d 869; Gorunkati v Baker Sanders, LLC , 179 AD3d at 906; Chiappone v North Shore Univ. Hosp. , 164 AD3d at 465).

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

Bellevue Towers & Gardens, LLC v. Atlantis Natl. Servs., Inc. · filed 2022-09-28(a)(1)

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the relevant allegations in the complaint, thereby conclusively establishing a defense as a matter of law ( see Gruber v Donaldsons, Inc. , 201 AD3d 887, 888; Leader v Steinway, Inc. , 180 AD3d 886, 887).

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

Greenstein v. Danzy · filed 2022-11-09(a)(1)

"A motion to dismiss a complaint based upon 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" ( Anderson v Armentano , 139 AD3d 769, 770 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... Here, the documentary evidence submitted by the defendant conclusively established that he was not the operator of Ladson's vehicle when the accident occurred.

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

Dybalski v. The Cortright Family Irrevocable Trust Dated July 12, 2007, Judith Varga, Individually & As Trustee of The C · filed 2022-11-10(a)(1)

We conclude that defendants failed to conclusively establish that the language of the Trust Agreement was a complete defense to plaintiff's claims as a matter of law.

On a motion to dismiss based on a release, the defendant meets its initial burden by submitting the release signed by the plaintiff.

Putnam v. Kibler · filed 2022-11-18(a)(5)

On the merits, we conclude that defendant met his initial burden of establishing that he was released from any claims by submitting the release executed by plaintiff ( see Armenta , 196 AD3d at 1197; Cain-Henry v Shot , 194 AD3d 1465, 1466 [4th Dept 2021]; Ford v Phillips , 121 AD3d 1232, 1233 [3d Dept 2014]) .

Section 3211(a)(1) permits dismissal of a breach of contract claim when documentary evidence establishes that the alleged contractual obligation was fulfilled.

Itara v. Masaryk Towers Corp. · filed 2022-12-22(a)(1)

Masaryk's claim for breach of contract for failure to procure insurance was correctly dismissed in view of documentary evidence establishing that Centennial obtained appropriate insurance (CPLR 3211[a][1]).

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

Inner Harbor Phase I L.P. v. Cor Inner Harbor Co. LLC · filed 2022-12-23(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]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]). ... Here, we conclude that the documentary evidence does not establish ratification as a matter of law.

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

Katz v. DePaola · filed 2022-12-28(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, thereby conclusively establishing a defense as a matter of law" ( Minzer v Minzer , 206 AD3d 721, 724 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d at 88).

Section 3211(a)(1) requires documentary evidence that conclusively establishes a defense to a claim as a matter of law; an affidavit does not qualify as conclusive documentary evidence.

Melrose Assoc. L.P. v. Floral Assoc. L.P. · filed 2023-01-17(a)(1)

None of the evidence that plaintiff presented on its motion conclusively established a defense to the counterclaims as a matter of law (CPLR 3211[a][1]; see Leon v Martinez , 84 NY2d 83, 88 [1994]). Although plaintiff relies on an affidavit from its secretary as evidence that defendants initiated a $750,000 payment to Melrose and therefore waived any objection to making the payment, that affidavit does not constitute conclusive documentary evidence ( see Tsimerman v Janoff , 40 AD3d 242, 242 [1st Dept 2007]).

A motion to dismiss based on documentary evidence cannot establish a statute of limitations defense as a matter of law when disputed facts prevent the evidence from conclusively refuting the plaintiff's allegations.

Meadow Apts. Corp. v. S & H LLC · filed 2022-12-15(a)(1) and (5)

Defendant moved to dismiss plaintiff's first, second, and third causes of action pursuant to CPLR 3211(a)(1) and (5), contending that documentary evidence established that those claims were time-barred. The court should have denied the motion. In light of the parties' factual dispute over the assertion of defendant's principal that he sent a letter dated December 8, 1992 to plaintiff's shareholders on that date, and issues as to whether the letter, even if so served, provided notice of a loss of special developer control pursuant to the federal Condominium and Cooperative Abuse Relief Act as required by the offering plan, the letter did not "utterly refute[] plaintiff's factual allegations, conclusively establishing" the statute of limitations defense as a matter of law ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; see VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC , 171 AD3d 189, 193 [2019]).

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

RTW Retailwinds, Inc. v. Colucci & Umans · filed 2023-02-14(a)(1)

Accordingly, defendants have not conclusively established a defense to these claims as a matter of law ( see CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314[*3], 326 [2002]). Therefore, the motion court should not have dismissed these claims.

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

AEA Middle Mkt. Debt Funding LLC v. Marblegate Asset Mgt., LLC · filed 2023-03-07(a)(1)

First, on a motion to dismiss pursuant to CPLR 3211, the court may grant dismissal when "'documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law'" ( Goldman v Metropolitan Life Ins. Co. , 5 NY3d 561, 571 [2005], quoting Held v Kaufman , 91 NY2d 425, 430—431 [1998]).

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

Barrier Group Inc. v. BMF Advance LLC · filed 2023-03-15(a)(1)

To successfully move to dismiss a complaint pursuant to Civil Practice Law and Rules § 321 l(a)(l ), the movant must present documentary evidence that resolves all factual issues as a matter oflaw, and conclusively disposes of the plaintiff's claim.

Under CPLR 3211(a)(1), documents submitted in support of dismissal must utterly refute the complaint’s allegations.

Wise v. 1614 Madison Partners, LLC · filed 2023-03-21(a)(1)

In any event, the documents submitted on reply did not utterly refute the allegations that certain purported construction concessions were in fact not to reimburse the tenants for inconveniences arising from construction work, but rather, were part of a fraudulent scheme to register the initial rents charged at inflated amounts ( see CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

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

Rosario v. Hallen Constr. Co., Inc. · filed 2023-03-21(a)(1)

Dismissal on the basis of documentary evidence is appropriate only if that evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law"( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002], citing Leon , 84 NY2d at 88).

Under CPLR 3211(a)(1), a contract supports dismissal only if it conclusively refutes the plaintiff’s allegations or establishes a defense as a matter of law.

University Hill Realty, Ltd v. Akl · filed 2023-03-24(a)(1)

Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) ( see Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1563 [4th Dept 2021]), we conclude that the contract submitted by defendants in support of their motion failed to "utterly refute . . . plaintiff's allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law" ( Lots 4 Less Stores, Inc. v Integrated Props., Inc. , 152 AD3d 1181, 1183 [4th Dept 2017] [internal quotation marks omitted]).

Section 3211(a)(5) permits a court to decide whether a release unambiguously bars a claim on a motion to dismiss, using the entire release without extrinsic evidence.

Lantz v. Lantz · filed 2023-06-22(a)(5)

"Whether the language set forth in a release unambiguously bars a particular claim is a question of law appropriately determined on a motion to dismiss based upon the entire release and without reference to extrinsic evidence" ( Stevens v Town of Chenango [Forks] , 167 AD3d 1105, 1106 [3d Dept 2018] [internal quotation marks and citations omitted]; see Zilinskas v Westinghouse Elec. Corp. , 248 AD2d 777, 779 [3d Dept 1998]).

Section 3211(a)(1) does not support dismissal when the documentary evidence fails to conclusively refute all potential bases for liability.

Matter of Barlotta v. A.O. Smith Water Prods. Co. · filed 2023-06-22(a)(1)

The court correctly declined to dismiss the complaints under CPLR 3211(a)(1), as the documentary evidence relied on by PB Heat did not conclusively refute all potential bases for successor liability ( see State Farm Fire & Cas. Co. v Main Bros. Oil Co. , 101 AD3d 1575, 1576-1577 [3d Dept 2012]).

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

Ofman v. Tenenbaum Berger & Shivers, LLP · filed 2023-06-28(a)(1)

Furthermore, "[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" ( Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d at 715). Here, the documentary evidence submitted by the defendants in support of their motion failed to utterly refute the factual allegations in the amended complaint.

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.

Ramirez v. Bank of N.Y. Mellon · filed 2023-09-13(a)(1)

Further, "[a] motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Vertical Progression, Inc. v Canyon Johnson Urban Funds , 126 AD3d 784, 786 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 316). Here, the defendant submitted documentary evidence which conclusively established a defense to the subject action to quiet title to the property by demonstrating that the plaintiff had been directed to transfer title to the property to Nationstar in exchange for Nationstar's credit bid by the sale order, which utterly refuted the plaintiff's allegations that no person or entity may claim any interest in the property other than the defendant ( see Carbone v Deutsche Bank Natl. Trust Co. , 145 AD3d at 849-850).

Section 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense by utterly refuting the plaintiff's factual allegations.

344 Rockaway Parkway Inv. Group, LLC v. Estate of Nedia Colon · filed 2023-09-20(a)(1)

Under CPLR 3211(a)(1), dismissal is warranted only if "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; [*2]Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874).

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.

Kwan v. Kuie Chin Yap · filed 2023-10-04(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mut. Life Ins. Co. of New York , 98 NY2d 314, 326; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d 714, 715).

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.

Omwathath v. Frank E. Basil, Inc. · filed 2023-10-18(a)(1)

"'A motion to dismiss [a cause of action] on the ground that the [cause of] action is barred by documentary evidence pursuant to CPLR 3211(a)(1) 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'" ( Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908, quoting Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077).

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.

Ikezi v. 82nd St. Academics · filed 2023-11-29(a)(1)

Here, the unambiguous and clear terms of the tuition agreement, which, inter alia, provided that the school maintained the right to dismiss the student for any reason in its sole discretion without notice, and made clear that the student was not guaranteed enrollment at the school for the following academic year, utterly refuted the mother's allegation that the defendants breached their contractual obligations. Therefore, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging breach of contract.

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

First Korean Church of N.Y. v. 35 Ave & Parsons, LLC · filed 2023-11-29(a)(1)

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations" ( Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908 [internal quotation marks omitted]; see Mawere v Landau , 130 AD3d 986, 987).

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

Salus v. Berke · filed 2023-11-30(a)(1)

Although Supreme Court was correct that plaintiffs sufficiently pleaded the breach of contract cause of action, it erred by not considering defendants' proffer, specifically, the retainer agreement, which conclusively establishes a defense as a matter of law.

Section 3211(a)(1) permits dismissal when documentary evidence establishes a defense despite accepting the complaint’s allegations as true.

1125 Morris Ave. Realty LLC v. Title Issues Agency LLC · filed 2023-12-12(a)(1)

Accordingly, the release constitutes documentary evidence, which taking all allegations in the complaint as true, nevertheless bars the instant action against the moving defendants.

Under § 3211(a)(1), judicial records can support dismissal when they utterly refute the plaintiff’s factual allegations.

"RB" v. Beeler · filed 2024-01-14(a)(1)

Thus, based on the judicial records provided by the Defendant, Plaintiff's argument has been utterly refuted as Plaintiff's authorization was deemed unnecessary by the courts.

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

Haruvi v. Hungerford · filed 2024-01-16(a)(1)

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 ( id. ).

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

Lazar v. Mor · filed 2024-01-10(a)(1)

Accordingly, the ... entities' operating agreements do not demonstrate that the breach of contract claims are palpably insufficient. (See CPLR 3211 [a] [1]; At1 & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436,438 [1st Dept 2014] ["A cause of action may be dismissed under CPLR 3211 (a) (1) only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (internal quotation marks and citation omitted)].)

CPLR 3211(a)(1) and (5) allow dismissal when a release of all claims bars the action.

Kante v. 801 Post Realty, LLC · filed 2024-02-21(a)(1), (5)

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint as barred by the release of all claims.

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

Franklin D. Nastasi Trust v. Bloomberg, L.P. · filed 2024-02-21(a)(1)

"Under CPLR 3211(a)(1), a dismissal is warranted only if 'the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ( Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d 83, 88).

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.

Arco Acquisitions, LLC v. Tiffany Plaza, LLC · filed 2024-02-21(a)(1)

The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.

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

Darwish Auto Group, LLC v. TD Bank, N.A. · filed 2024-02-22(a)(1)

Lastly, the documentary evidence submitted by defendant "fails to utterly refute plaintiff[s'] factual allegations and conclusively establish a defense as a matter of law" ( Singe v Bates Troy, Inc. , 206 AD3d 1528, 1531 [3d Dept 2022] [internal quotation marks, brackets and citation omitted]; see CPLR 3211 [a] [1]; Hartshorne v Roman Catholic Diocese of Albany, N.Y. , 200 AD3d 1427, 1429-1430 [3d Dept 2021]).

CPLR 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.

Cunningham v. Cunningham · filed 2024-03-06(a)(1)

Here, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(1), as the defendant's submissions failed to utterly refute the plaintiff's allegations or conclusively establish a defense as a matter of law to the plaintiff's cause of action ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Lewis & Murphy Realty, Inc. v Colletti , 187 AD3d at 733; see also Domestic Relations Law § 170[7]).

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

Wesco Ins. Co. v. Sean Coakley Plumbing & Heating Inc. · filed 2024-04-02(a)(1)

It is well settled Ihat a motion to dismiss bw,cJ on documentary evidence pursuant to CPLR § 3211 (u)(l) is appropriately granle<l only when the documenLary evidence utterly refutes the plaint1 ff s factual allegations, conclusively establishing a defense as a matler o (-law ( Cioshen v Mutual Life Ins. Co. t~{ New York, 98 NY2d 3 l4 {2002]). ... Accordingly, Defendant's motion to dismiss Pluinlifrs Complaint pursuant 10 CPLR 321 l (a)(l) is deni~d.

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

Matter of Mattone Group Springnex, LLC v. CFM Dev., LLC · filed 2024-04-10(a)(1)

On a motion to dismiss pursuant to CPLR 3211, the pleadings are afforded a liberal construction and the plaintiff is accorded the benefit of every possible favorable inference ( see Goshen Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 87). Pursuant to CPLR 3211(a)(1), dismissal is warranted "only where the documentary evidence utterly refutes" the factual allegations of the pleadings, 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) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

7 Mansion, LLC v. Calvano · filed 2024-04-10(a)(1)

Under CPLR 3211(a)(1), a dismissal is warranted only if 'the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law' ( Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

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

Gourin v. 72A Realty Assoc., L.P. · filed 2024-04-11(a)(1)

Supreme Court correctly held that the apartment at issue is not rent stabilized based on documentary evidence, submitted with defendant's motion to dismiss, establishing a defense to the claim for declaratory relief as a matter of law.

Section 3211(a)(5) permits dismissal of a claim barred by the statute of limitations, subject to relation-back principles.

Alexander v. Medalliance Med. Health Servs. · filed 2024-04-15(a)(5)

Defendant, Carlos Frias, M.D., seeks dismissal of plaintiffs' amended complaint dated April 10, 2023, which alleges medical malpractice and loss of services, on the theory that it is time barred by the applicable statute of limitations. (CPLR 3211(a)(5).) ... Therefore, the instant motion by Dr. Frias is denied without prejudice to renew once discovery is complete.

CPLR § 3211(a)(1) permits a claim to be dismissed when documentary evidence conclusively refutes it.

Schnitzler v. 39 W. 87th St. Hous. Corp. · filed 2024-04-26(a)(1)

Even assuming the email qualifies as documentary evidence, it does not conclusively refute plaintiffs' constructive-eviction claim. ( See CPLR 3211 [a] [1].)

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

Cold Spring Advisory Group, LLC v. National Sec. Corp. · filed 2024-04-30(a)(1)

Supreme Court should not have dismissed the complaint as against NSC based upon documentary evidence (CPLR 3211[a][1]).

Section 3211(a)(1) permits a court to dismiss an action based on documentary evidence submitted with the motion.

Board of Mgrs. of the 100 W. 93 Condominium v. 660 Columbus Retail Owner · filed 2024-05-09(a)(1)

Supreme Court properly dismissed this action based upon documentary evidence submitted with defendants' motion, specifically, the declaration with amendments and the by-laws, which include repairs, restorations, capital improvements, and other alterations to the common elements as common expenses to be funded by common charges assessed by the Board (CPLR 3211[a][1]; see Vermont Teddy Bear Co. v 538 Madison Realty Co. , 1 NY3d 470, 475 [2004], quoting W.W.W. Assoc. v Giancontieri , 77 NY2d 157, 162 [1990]; see also Leon v Martinez , 84 NY2d 83, 88 [1994]).

CPLR 3211(a)(5) permits dismissal when a cause of action may not be maintained because of a release, with the plaintiff's allegations treated as true and reasonable inferences resolved in the plaintiff's favor.

Davin v. Plymouth Rock Assur. Co. of N.Y. · filed 2024-05-15(a)(5)

In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), "the plaintiff's allegations are to be treated as true, [and] all inferences that reasonably flow therefrom are to be resolved in his or her favor" ( Sacchetti-Virga v Bonilla , 158 AD3d 783, 784 [internal quotation marks omitted]; see Prete v Tamares Dev. 1, LLC , 219 AD3d at 1537).

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

Mulacek v. ExxonMobil Corporation · filed 2024-05-16(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 conclusively establishes a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

Parapi v. 470 W. 23 Assoc., LLC · filed 2024-06-05(a)(1)

Here, the lease between the defendant and a tenant did not "utterly refute[ ] [the] plaintiff's factual allegations" regarding whether the defendant had a duty to maintain the property, or "conclusively establish[ ] a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see CPLR 3211[a][1]; Pirozzi v Garvin , 185 AD3d at 850).

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

Zoey Paint Corp. v. Commercial Credit Group Inc. · filed 2024-07-10(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] [citation omitted]). A contractual forum section cause is documentary evidence that may be considered at the motion to dismiss stage (Lischinskaya v Carnival Corp., 56 AD3d 116, 123 [2d Dept 2008] lv. denied 12 NY3d 716 [2009]).

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

Privilege Underwriters Reciprocal Exch. v. SBP N.Y., LLC · filed 2024-07-01(a)(1)

On a motion pursuant to 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 when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a legal defense.

Sayegh v. LKH 23rd, LLC · filed 2024-07-15(a)(1)

Pursuant to CPLR 3211(a)(l), "[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law" (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal citations and quotations omitted]).

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

Goldenberg v. Metropolitan Transp. Auth. · filed 2024-07-17(a)(1)

"A defendant is entitled to dismissal pursuant to CPLR 3211(a) (1) only if the documentary evidence 'utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ( Eccles v Shamrock Capital Advisors, LL C, — NY3d —, 2024 NY Slip Op 02841 [2024], quoting Goshen , 98 NY2d at 326 [2002]).

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

Karter v. Longevity Health Servs. LLC · filed 2024-07-24(a)(1)

A motion to dismiss based on documentary evidence pursuant to CPLR § 321 l(a)(l) is appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defense as a matter oflaw (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]).

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

Osang LLC v. Nerfherder Distrib., LLC · filed 2024-07-24(a)(1)

But even assuming those WhatsApp messages qualify as documentary evidence, they do not "conclusively establish[ ] a defense" to defendant's counterclaims, as required to obtain dismissal under CPLR 3211 (a) (1).

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

Bronxville Scout Comm. v. County of Westchester · filed 2024-07-31(a)(1)

"A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted 'only where the documentary evidence utterly refutes the plaintiff's factual allegations' ( First Korean Church of N.Y. v 35 Ave & Parsons, LLC , 221 AD3d 971, 972, quoting Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908), "resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue" ( Yue Fung USA Enters., Inc. v Novelty Crystal Corp. , 105 AD3d 840, 841).

Section 3211(a)(5) requires the defendant moving to dismiss as time-barred to make a prima facie showing that the limitations period expired.

Comito v. Z & N Enters. Corp. · filed 2024-08-07(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( RTT Holdings, LLC v Nacht , 206 AD3d 834, 835).

Section 3211(a)(5) allows dismissal when a claim is barred by the limitations period and places the initial burden on the defendant to show that the time to sue has expired.

Matter of Ali-GoPaul v. City of New York · filed 2024-08-14(a)(5)

CPLR § 3211(a)(5) provides that a party may move to dismiss a claim where the cause of action may not be maintained due to, inter alia, commencement past the applicable limitations period. A defendant who seeks dismissal pursuant to this provision bears the initial burden of establishing prima facie that the time in which to sue has expired.

Section 3211(a)(5) permits dismissal of a claim barred by a release.

Huseinovic v. Lee Wilson Mgt., LLC · filed 2024-08-14(a)(5)

"'A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release'" ( Cames v Craig , 181 AD3d 851, 851, quoting CPLR 3211[a][5]).

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

Winick Realty Group LLC v. 120 E. 87th St., L.L.C. · filed 2024-09-09(a)(1)

The Court finds that Defendant’s documentary evidence establishes a conclusive defense to Plaintiff’s breach of contract cause of action. ... The first and second causes of action for breach of contract are accordingly dismissed pursuant to CPLR 3211(a)(1) and (7).

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

Vall v. City of New York · filed 2024-09-10(a)(1)

Therefore, the BP Defendants have conclusively established a defense as a matter of law, and dismissal under CPLR § 3211(a)(1) is warranted.

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.

Bricker v. Thorsen · filed 2024-09-11(a)(1)

Here, documentary evidence showing that Bricker Sr. consented to the defendant's mortgage, that the defendant moved for judicial approval of the defendant's mortgage, that the Supreme Court determined that judicial approval was not required, and that the defendant's withdrawal of his motion for judicial approval was authorized by the court and not objected to by Kim Bricker's counsel conclusively established that the filing of the defendant's mortgage against the property "was not without court approval in contravention of 22 NYCRR 1400.5(a)(3)" ( Gross v Gross , 36 AD3d 318, 324). Thus, the court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

CPLR 3211(a)(1) permits dismissal based on documentary evidence supporting a defense; the court will not consider that ground when the movant provides no documentary evidence.

Ogundiran v. Spira · filed 2024-09-11(a)(1)

CPLR 3211 (a) (1) enables dismissal of a cause of action on the ground that a defense is founded upon documentary evidence. Defendant MTQLG has not proffered any documentary evidence. Therefore, its motion is not being considered under this provision.