N.Y. C.P.L.R. § 3211

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.

Murray v. Samsung Elecs. Am., Inc. · filed 2024-09-12(a)(1)

""A motion to dismiss on the ground that the 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, conclusively establishing a defense as a matter of law" ( Qureshi v. Vital Transp., Inc ., 173 AD3d 1076, 1077, 103 N.Y.S.3d 515; see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190)."" ( Davis v. Henry , 212 AD3d 597, 597 [2nd Dept. 2023].) Samsung has met this burden.

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.

Adelson v. Sharkey · filed 2024-09-18(a)(1)

"A motion to dismiss on the ground that the 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, conclusively establishing a defense as a matter of law" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077; see Leon v Martinez , 84 NY2d 83, 88). Here, the Supreme Court properly determined that the defendants' submission of the deed dated December 15, 2004, conclusively established that Sharkey's life estate in the property was not subject to any conditions and therefore, Sharkey's alleged failure to reside at or pay taxes on the property did not render the life estate null and void as alleged in the complaint.

CPLR 3211(a)(1) permits dismissal when documentary evidence unequivocally defeats the pleaded claim.

Lyons v. Sigma Mgt. Holdings, LLC · filed 2024-09-23(a)(1)

As discussed above, the CPLR 3211(a)(1) evidence unequivocally establishes that no payments were in fact due under the Note and that this lawsuit is premature.

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

Matter of Toyota Lease Trust v. Perfection Auto Serv., Inc. · filed 2024-09-25(a)(1)

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations 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; Leon v Martinez , 84 NY2d at 88).

Under § 3211(a)(1), a court does not accept allegations as true when documentary evidence contradicts them.

Taxi Tours Inc. v. Go N.Y. Tours, Inc. · filed 2024-09-27(a)(1)

Here, as in federal court, the court does not accept allegations as true when they are contradicted by documentary evidence (CPLR 3211 [a][l]; see 150 Broadway NY. Assoc., L.P. v Bodner, 14 AD3d 1 [1st Dept 2004] ["where 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 ), regardless of any extrinsic evidence or self-serving allegations offered by the proponent of the claim"]).

CPLR 3211(a)(1) permits dismissal of a promissory estoppel claim when a written agreement and its integration clause defeat reasonable reliance.

Liberty Maintenance, Inc. v. Alliant Ins. Servs., Inc. · filed 2024-10-04(a)(1)

We agree with defendant that Supreme Court erred in denying the motion insofar as it sought dismissal of the fifth cause of action, for promissory estoppel, pursuant to CPLR 3211 (a) (1), and we therefore modify the order accordingly. ... Here, defendant established not only that the parties had a contract, i.e., the brokerage services agreement, but also that the agreement included an integration clause prohibiting modification of the agreement except by written amendment. We conclude that plaintiff has "no tenable claim that [it] reasonably relied upon [defendant's alleged oral or implied promise] in support of [its promissory] estoppel cause of action" ( Gebbia v Toronto-Dominion Bank , 306 AD2d 37, 38 [1st Dept 2003]; see IBT Media Inc. v Pragad , 220 AD3d 530, 532 [1st Dept 2023]).

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

Boland's Excavating & Topsoil, Inc. v. Bradford Cent. Sch. Dist. · filed 2024-10-04(a)(1)

The documentary evidence submitted by Schuler—including its contract with the District, its subcontract with Boland, and email correspondences between Schuler, Boland, and the District's construction manager—failed to conclusively establish a defense to the claims of breach of contract asserted in the third-party complaint as a matter of law ( see Leon , 84 NY2d at 88).

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

Mark Propco LLC v. Jackson · filed 2024-10-11(a)(1)

The Guaranty does not utterly refute plaintiff's factual allegations here. Plaintiff is suing pursuant to the Lease Documents, which includes the Second Assignment, which may be the June 2014 lease referred to in the Guaranty.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively defeats the plaintiff's allegations; an affidavit does not qualify as documentary evidence.

Kurtaj v. Borax Paper Prods., Inc. · filed 2024-10-16(a)(1)

Here, contrary to the defendants' contention, the affidavit of an officer of the defendant Imperial Bag and Paper Co., LLC (hereinafter Imperial), was not documentary evidence, and the leases proffered therewith failed to conclusively dispose of the plaintiff's claim ( see Holmquist v Orphanides , 219 AD3d 1415, 1417; Davis v Henry , 212 AD3d 597, 598).

CPLR 3211(a)(1) permits dismissal when undisputed documentary evidence establishes that the claims cannot stand.

A.N.L.Y.H. Invs. LP v. JDS Principal Highline LLC · filed 2024-10-17(a)(1)

Given that there is no dispute concerning the validity of JDS Highline's promissory note, and given further that the note on its face covers the subject matter of the loan, it is of no moment that there is a dispute as to whether plaintiff and Stern entered into an oral agreement relating to the loan. Accordingly, the claims against JDS Construction for unjust enrichment and money had and received should have been dismissed based upon undisputed documentary evidence pursuant to CPLR 3211(a)(1).

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

Song Yong Yu v. Envision Physician Servs., LLC · filed 2024-10-23(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" ( Russo v Crisona , 219 AD3d 920, 922 [internal quotation marks omitted]; see Jeffrey v Collins , 218 AD3d 451, 453; Davis v Henry , 212 AD3d 597, 597).

Section 3211(a)(1) permits dismissal of a breach of contract claim when documentary evidence establishes that the defendant signed the agreements solely in a corporate capacity.

Popal v. DiLorenzo · filed 2024-10-23(a)(1)

Here, the documentary evidence submitted by the defendant, in the form of the agreements between the plaintiff and Cover 2 Investigations, Inc., established that the defendant executed the agreements solely in his corporate capacity and did not purport to bind himself individually ( see Khiyayev v MikeSad Enters., Inc. , 66 AD3d 845, 846). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging breach of contract ( see Georgia Malone & Co., Inc. v Rieder , 86 AD3d 406, 408, affd 19 NY3d 511; Khiyayev v MikeSad Enters., Inc. , 66 AD3d at 846; Gordon v Teramo & Co. , 308 AD2d 432, 433).

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.

Hudson View Park Co. v. Town of Fishkill · filed 2024-10-30(a)(1)

Here the MOU, submitted by the defendants in support of the motion, utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law, as by its express terms the MOU violates the term limits rule and constitutes illegal contract zoning, and therefore is void and unenforceable ( see CPLR 3211[a][1]; Matter of Neeman v Town of Warwick , 184 AD3d at 570; Quigley v City of Oswego , 71 AD2d at 795).

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

East Liberty St. Owner LLC v. 1903P Loan Agent, LLC · filed 2024-10-30(a)(1)

CPLR § 321 l(a)(l) allows for a complaint to be dismissed if there is a "defense founded upon documentary evidence." Dismissal is only warranted under this provision if "the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." Leon v. Martinez, 84 N.Y.2d 83, 88 (1994).

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

Fitzpatrick v. City of New York · filed 2024-11-13(a)(1)

The Supreme Court properly denied dismissal of all cross-claims insofar as asserted against Moriarty and the second third-party complaint. To the extent that the evidentiary material submitted by Moriarty qualified as documentary evidence, it cannot be said that "the documentary evidence utterly refutes [the] factual allegations, conclusively establishing a defense as a matter of law" ( Ming Long Liu v Kirkwood , 222 AD3d 861, 861 [internal quotation marks omitted]; see CPLR 3211[a][1]).

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

123 On the Park LLC v. Decicco-Ting · filed 2024-11-17(a)(1)

On a "CPLR 3211 (a) (1) motion to dismiss on the ground that the action is barred by documentary evidence, such 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." ... As the Court finds that the concession is the legal equivalent of a preferential rent Respondent's motion to dismiss is granted.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, including that a claim is time-barred.

Lakeview Loan Servicing, LLC v. Rafuna · filed 2024-11-20(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'" ( Ramirez v Bank of N.Y. Mellon , 219 AD3d 1359, 1360, quoting Vertical Progression, Inc. v Canyon Johnson Urban Funds , 126 AD3d 784, 786; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 316). Here, the defendant's evidentiary submissions directed at the satisfaction of mortgage established that the cause of action to vacate the satisfaction of mortgage was time-barred.

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

585 Gerard Acquisition LLC v. G.A.L. Mfg. Co., LLC · filed 2024-11-21(a)(1)

CPLR 3211(a)(1) dismissal of the contract-based claims for specific performance, breach of written/oral contract, promissory estoppel, unjust enrichment, tortious interference with contract, and breach of the implied covenant of good faith (first to fifth, seventh, and fourteen to sixteen causes of action) was proper. The documentary evidence utterly refuted plaintiff's allegations that the termination provision in the operative amended purchase and sale agreement was ineffective based on an oral agreement requiring the GAL defendants to close the sale.

Section 3211(a)(5) permits dismissal based on a release; whether the release bars the action is a question of law for the court.

Loman v. DS Brooklyn Portfolio Owner LLC · filed 2024-11-26(a)(5)

As the Huseinovic decision, the issue of whether a release bars an action is a question of law and is properly determined on a motion to dismiss pursuant to CPLR 3211 (a) (5).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense and the plaintiff raises no factual issue that defeats it.

Farage v. Associated Ins. Mgt. Corp. · filed 2024-11-26(a)(1)

Because plaintiff did not raise a question of fact as to the enforceability of the limitation provision, the Tower/AmTrust defendant's motion to dismiss the complaint in its entirety pursuant to CPLR 3211 (a) (1) was property granted.

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

Cantor Fitzgerald, L.P. v. SVF Park NY, LLC · filed 2024-11-29(a)(1)

Dismissal of the breach of contract cause of action is likewise unwarranted under CPLR 3211(a)(1), as SVF’s proffered documentary evidence does not resolve all factual issues as a matter of law, conclusively disposing of Cantor’s breach of contract claim.

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

AZL Realty, LLC v. Newcare Pharmacy, Inc. · filed 2024-12-04(a)(1)

Here, the documentary evidence submitted by Newcare in support of its motion—i.e., the lease—conclusively established that Newcare was not in default of the lease pursuant to its terms and that Newcare was not a holdover tenant pursuant to its terms ( see Global World Realty, Inc. v Zubli , 219 AD3d 1495). Accordingly, the Supreme Court properly granted, pursuant to CPLR 3211(a)(1), Newcare's motion to dismiss the complaint insofar as asserted against it.

On a motion to dismiss based on a release, the moving party must first establish a valid, enforceable release that benefits them; the plaintiff must then establish a ground to set it aside.

Marcella v. Glowacki · filed 2024-12-05(a)(5)

The party seeking to dismiss an action on the basis of a release has the initial burden to establish the existence of a valid and enforceable release of which he or she is a beneficiary ( see CPLR 3211 [a] [5]; Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V. , 17 NY3d at 276; Fleming v Ponziani , 24 NY2d 105, 112-113 [1969]; Prete v Tameres Dev. 1, LLC , 219 AD3d 1537, 1537-1538 [2d Dept 2023]). Upon doing so, the burden shifts to the plaintiff to establish a ground upon which the release may be set aside — i.e., due to "duress, illegality, fraud, or mutual mistake" ( Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V. , 17 NY3d at 276; see Mangini v McClurg , 24 NY2d 556, 563 [1969]; Putnam v Kibler , 210 AD3d 1458, 1462 [4th Dept 2022]; Young v Williams , 47 AD3d 1084, 1086 [3d Dept 2008]).

Under CPLR 3211(a)(1), a defendant seeking dismissal based on documentary evidence must show that the evidence conclusively refutes the complaint's allegations.

Kolchins v. Evolution Markets, Inc. · filed 2018-03-29(a)(1)

The issue on this appeal is whether the documentary evidence proffered by defendant Evolution Markets, Inc. on its motion to dismiss pursuant to CPLR 3211(a)(1) conclusively refuted plaintiff Andrew Kolchins's breach of contract claims. We hold that defendant has not met its burden and we, therefore, affirm.

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

Matter of Peaceful Val. Hous. Dev. Fund Corp. v. Town of Johnsburg · filed 2024-12-12(a)(1)

With respect to a CPLR 3211 (a) (1) motion, "[d]ismissal is appropriate where the documentary evidence utterly refutes the petitioner's allegations, conclusively establishing a defense as a matter of law" ( Salus v Berke , 221 AD3d 1390, 1391 [3d Dept 2023] [internal quotation marks and citations omitted]).

Section 3211(a)(5) permits dismissal when a release bars the claims asserted.

Caiola v. Fox-Nahem Assoc., LLC · filed 2024-12-16(a)(5)

The court grants the motion to dismiss the complaint, pursuant to CPLR 3211(a)(5), on the grounds of the release and need not reach the other grounds, res judicata and collateral estoppel.

On a motion to dismiss under CPLR 3211(a)(5), the plaintiff's allegations and opposition affidavit are read favorably, with reasonable inferences drawn in the plaintiff's favor.

Applewhite v. 112 Liberty Assoc., LLC · filed 2024-12-18(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'" ( Wei Qiang Huang v Llerena-Salazar , 222 AD3d at 1034, quoting Sacchetti-Virga v Bonilla , 158 AD3d 783, 784).

Section 3211(a)(1) requires the moving party to present documentary evidence that utterly refutes the plaintiff’s allegations to obtain dismissal.

Clemente v. Forefront Ins. Brokerage Inc. · filed 2024-12-26(a)(1)

At this procedural juncture, the burden is on Hyundai to proffer documentary evidence that utterly refutes Plaintiffs allegations, but Hyundai has failed to do so.

CPLR 3211(a)(1) permits dismissal of a breach-of-contract counterclaim when the contract refutes the counterclaim’s premise.

A-US GAL1, L.P. v. National Air Cargo Group, Inc. · filed 2024-12-31(a)(1)

Since National's counterclaim against AUSG1 was premised on paragraph 7.3 of the assignment in the sense that it amends the return and redelivery provisions of the lease, National's counterclaim for breach of contract is refuted by section 19(b) of the lease and should be dismissed under CPLR 3211(a)(1) ( see M & E 73-75, LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020]).

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.

Board of Mgrs. of the 135 W. 52nd St. Condominium v. 135 W. 52nd St. Owner LLC · filed 2024-12-31(a)(1)

A motion to dismiss under CPLR 3211(a)(1) on the ground that an action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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.

Amoia v. Mandelbaum Barrett, P.C. · filed 2025-01-17(a)(1)

Therefore, “the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law” (Phillips, 152 AD3d at 806).

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.

Hamer v. FPG Am., LLC · filed 2025-02-05(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" ( Churong Liu v Gabbay , 219 AD3d 459, 460 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

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

Aguasvivas v. Mountain Val. Indem. Co. · filed 2025-02-13(a)(1)

Since defendant's documentary evidence establishes that this action was not commenced until almost three months thereafter, it is time-barred. Thus, defendant conclusively establishes its defense to this action and dismissal of the complaint is warented pursuant to CPLR § 3211(a)(1).

A validly authenticated insurance identification card can qualify as documentary evidence under CPLR 3211(a)(1) to establish that a defendant did not own a vehicle.

Gujjar v. Atwell · filed 2025-03-04(a)(1)

This Court finds that despite lack of prior case law regarding an Insurance Identification Card constituting CPLR 3211 (a) (1) documentary evidence, a validly authenticated one meets the criteria in a situation where the named defendant denies owning the vehicle and avows rather that it was the insurance issuer .

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

A.G.P./Alliance Global Partners, LLC v. Allarity Therapeutics, Inc. · filed 2025-03-03(a)(1)

A motion to dismiss on this basis will be granted "only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter oflaw" (Goshen v Mutual Ljfe Ins. Co. of N. Y., 98 NY2d 314, 326 [2002]; Amsterdam Hospjtaljty Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014]).

CPLR 3211(a)(1) permits dismissal when an unambiguous agreement bars the claim; interpreting that agreement is a legal determination, not the resolution of a disputed fact.

Matter of Estate of John R. · filed 2025-03-14(a)(1)

Contrary to petitioners' contention, the Surrogate did not err by improperly deciding a disputed factual issue on a motion to dismiss. ... Rather than deciding a factual issue in dispute, the Surrogate based her decision upon a legal determination that the agreement was unambiguous and required dismissal of the claim ( see generally CPLR 3211 [a] [1]).

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

Mirza v. College of Mount St. Vincent · filed 2025-03-18(a)(1)

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.

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.

Arrospide v. City of New York · filed 2025-04-02(a)(1)

Under CPLR § 3211(a)(1), dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense as a matter of law ( Phillips v Taco Bell Corp. , 152 AD3d 806, 806-807 [2d Dept 2017]; VXI Lux Holdco S.A.R.L v SIC Holdings, LLC , 171 AD3d 189, 193 [1st Dept 2019]). ... In sum, the court finds that Defendants' documentary evidence fails to conclusively refute Plaintiff's allegations.

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

Chirico v. 352 Capital ABS Fund LLC · filed 2025-04-09(a)(1)

A motion to dismiss under CPLR § 3211(a)(1) “‘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.’” ... Accordingly, the Court determines that the Employment Agreement—which is attached to the Amended Complaint—applies to Plaintiff’s claim for advancement of legal fees in connection ... with the Investigation and directly refutes Plaintiff’s allegations in the Amended Complaint that he is entitled to advancement in the Investigation.

Section 3211(a)(1) permits a pre-answer motion to dismiss a foreclosure complaint when the lender's own filed documents establish its failure to satisfy the RPAPL § 1304 notice condition precedent.

State of N.Y. Mtge. Agency v. Stafford · filed 2025-04-21(a)(1)

In the present case, contrary to the assertions of the Plaintiff, the Court holds that the Defendants have made a timely and propermotion pursuant to CPLR §321 l(a)(l), sufficiently demonstrating that the Plaintiff's own filed documents establish that the Plaintiff has not satisfied the condition precedent of proper service of a 90-day notice, mandated by RPAPL§ 1304.

Section 3211(a)(5) permits dismissal when a release bars the claims; a plaintiff's assertion that they did not understand the release is insufficient to void it.

Lewis v. 143 Ave Realty, Inc. · filed 2025-04-23(a)(5)

Here, the defendants submitted, inter alia, a release executed by the plaintiff dated May 12, 2015, which, by its terms, barred the instant action against the defendants ( see Prete v Tamares Dev. 1, LLC , 219 AD3d at 1538). In opposition, the plaintiff's assertion that he failed to understand the import of the release was not sufficient to void the release ( see Collins-Genova v [*2]Louros , 204 AD3d 748, 749). Accordingly, the Supreme Court should have granted the defendants' motion, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint.

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

Printvision, Inc. v. Caccese · filed 2025-05-08(a)(1)

Dismissal is “warranted only if documentary evidence submitted utterly refutes plaintiff’s factual allegations, and conclusively establishes a defense to the asserted claims as a matter of law” (Kolchins v Evolution Markets, Inc., 128 AD3d 47 [1st Dept 2015], affd, 31 NY3d 100 [2018] [internal quotations omitted]). ... Because plaintiff’s losses were not covered by the insurance agreement, and Travelers properly disclaimed coverage, plaintiff would not have prevailed in the DJ action. As a result, plaintiff cannot establish the necessary proximate cause for its malpractice claim against defendants. Accordingly, defendant's motion to dismiss plaintiff’s first cause of action, based on lack of coverage under the voluntary parting exclusion, is granted.

Under CPLR 3211(a)(1), a claim may be dismissed when unequivocal documentary evidence conclusively refutes the plaintiff's factual allegations.

Nolte v. Salisbury · filed 2025-05-12(a)(1)

On motions to dismiss under CPLR §3211(a)(1), the court gives the plaintiff's factual allegations a liberal construction but will dismiss claims when the documentary evidence is unequivocal. This amended complaint fails to state a cause of action to quiet title because while it alleged a cloud on the title, the Trust instrument utterly refutes plaintiff's claim that he is entitled to a trustees' deed transferring him 25% interest in the Property.

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.

Irrera v. Bernstein Equity Partners, LLC · filed 2025-05-13(a)(1)

On a motion to dismiss pursuant to CPLR 3211(a)(1), “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff’s 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]).

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.

Elixir Capital, LLC v. Krayola Kid'z Childcare LLC · filed 2025-05-20(a)(1)

"A motion pursuantto CPLR,§ 3211 [a] [l] to dismiss the complainton the ground that the action is barred by documentary evidence may be [appropriatelyl granted only where the documentary evidence utterly refutes the plarritiff's factual allegations, thereby conclusively establishing a defense, as a matter oflaw'' (Karpovich v City a/New York, 162 AD3d 996, 997 [2dDept 2018] citing Mawere v Landau, 130 AD3d 986, 987 [2d Dept 2015]; see also Beal Sdv. Bank v Sommer, 8 NY3d 318, 324 [2007] and Goshen v Mutual Life Insurance Co. ofN. Y., 98 NY2d 314, 326 [2002]).

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

Nino & Nino Corp. v. Utica First Ins. Co. · filed 2025-05-28(a)(1)

A motion to dismiss pursuant to CPLR 3211(a)(1) based on documentary evidence "is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Minchala v 829 Jefferson, LLC , 177 AD3d 866, 867 [internal quotation marks omitted]).

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

Matter of Smith · filed 2025-06-03(a)(1)

The petition was also dismissed because its allegations are "utterly refuted" by documentary evidence-the terms of the 1998 QPRT (CPLR 321 l[a][l]; see Leon v Martinez, 84 NY2d 83 [1994]; Lopez v Fenn, 90 AD3d 569 [1st Dept 2011]).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the allegations supporting a cause of action.

IPA Asset Mgt., LLC v. Schuman · filed 2025-06-04(a)(1)

In any event, even assuming that the plaintiff adequately pleaded a cause of action to recover damages for breach of a joint venture agreement, the defendants submitted documentary evidence utterly refuting the allegations supporting that cause of action, thereby warranting dismissal thereof pursuant to CPLR 3211(a)(1) ( see Nanomedicon, LLC v Research Found. of State Univ. of N.Y. , 112 AD3d 594, 597).

Dismissal based on documentary evidence requires evidence that conclusively establishes a defense as a matter of law.

WT Stanley Holdings Corp. v. Piazza Carpet, LLC · filed 2025-06-06(a)(1)

However, even assuming, arguendo, that defendant's submissions established that defendant properly notified plaintiff that time was of the essence ( see generally Oregon Mtn. , 6 AD3d at 1193), we conclude that the documentary evidence failed to "utterly refute[ ]" plaintiff's allegations that, inter alia, it was ready, willing, and able to close on the purchase of the premises, 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 generally Ornstein Leyton Realty , LLC v Central Islip Assoc. , LLC , 165 AD3d 683, 685 [2d Dept 2018]; Liberty Affordable Hous. , Inc. v Maple Ct. Apts. , 125 AD3d 85, 92 [4th Dept 2015]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense; a remaining factual question requires denial.

Holderness v. City of New York · filed 2025-06-10(a)(1)

Dismissal under CPLR § 3211 (a) (1) 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]). ... However, given the close proximity of all three properties, there is a question of fact regarding whether plywood placed over the sidewalk at 1065 3rd Avenue was related to the nearby construction at the neighboring properties owned by the Movant. Therefore, denial of the motion is appropriate at this stage of the proceeding.

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

Christian v. Paul B. Weitz & Assoc., P.C. · filed 2025-06-23(a)(1)

Civil Court properly dismissed plaintiff's action for legal malpractice based upon documentary evidence that conclusively established a defense to the action ( see CPLR 3211 [a] [1]; Leon v Martinez , 84 NY2d 83 [1994]).

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

Juarez v. Levitt · filed 2025-06-25(a)(1)

Dismissal is “warranted only if documentary evidence submitted utterly refutes plaintiff's factual allegations, and conclusively establishes a defense to the asserted claims as a matter of law” (Kolchins v Evolution Markets, Inc., 128 AD3d 47 [1st Dept 2015], affd, 31 NY3d 100 [2018] [internal quotations omitted]).

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

Zoey Paint Corp. v. Boston Ship Repair, LLC · filed 2025-06-25(a)(1)

To be entitled to dismissal under CPLR § 3211(a)(1), a defendant's documentary evidence must "utterly refute[] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of New York , 98 NY2d 314, 326 [2002]).

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

Matter of Ardalan v. Safaie · filed 2025-06-27(a)(1)

Moreover, we agree with petitioner that the "documentary evidence submitted by [respondent] does not conclusively establish a defense to the action as a matter of law" ( Roller v Walsh , 278 AD2d 811, 811 [4th Dept 2000]).

Section 3211(a)(1) permits dismissal when documentary evidence refutes an allegation in the complaint.

J. Carey Smith 2019 Irrevocable Trust v. 11 W. 12 Realty LLC · filed 2025-07-03(a)(1)

Additionally, the allegation that "Old House represented that all defects and deficiencies previously noted had [*4]been corrected" is refuted by the documentary evidence — namely, Old House's report and plaintiffs' own complaint allegations.

Section 3211(a)(1) permits dismissal when documentary evidence contradicts the plaintiff's factual allegations and disposes of the claim.

Sea Gate Assn. v. CG-3PL Engg., D.P.C. · filed 2025-07-14(a)(1)

Where, as here, Plaintiff's factual allegations are contradicted by documentary evidence, they are not presumed to be true or accorded any favorable inference.

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.

Maldonado v. Queens Vil. Mgt. Corp. · filed 2025-07-23(a)(1)

When moving for dismissal pursuant to CPLR 3211 (a) (1), the motion will only be granted "if the party submits documentary evidence that utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the causes of action as a matter of law" ( Meyer v New York-Presbyterian Hosp. Queens , 167 AD3d 996, 997 [2d Dept 2018]). ... The submitted documentary evidence utterly refutes the factual allegations of Plaintiff in terms of ownership and operation of 218-35 Hempstead Avenue.

On a motion to dismiss based on a release, the defendant must initially establish that the release bars the action, and the plaintiff's allegations and reasonable inferences are taken in the plaintiff's favor.

Schneier v. Clermont York Assoc., LLC · filed 2025-07-30(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'" ( id. at 863-864, quoting Sacchetti-Virga v Bonilla , 158 AD3d 783, 784). ... Thus, the defendant met its initial burden of establishing that the instant action was barred by the release ( see Prete v Tamares Dev. 1, LLC , 219 AD3d at 1537; Wells Fargo Bank, N.A. v Miller , 150 AD3d 1046, 1048-1049).

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

Avamer 57 Fee LLC v. Hunter Boot USA LLC · filed 2025-08-07(a)(1)

A motion to dismiss based on documentary evidence (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 [2002]). Supreme Court should not have granted the motions to dismiss the breach of contract claim against Authentic and Fisher for failure to state a cause of action or based on documentary evidence.

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

K.M. v. Rochelle · filed 2025-08-13(a)(1)

This documentary evidence utterly refuted the mother's allegation that Ursuline breached its contractual obligations. Therefore, the Supreme Court properly granted that branch of Ursuline's motion which was pursuant to CPLR 3211(a)(1) to dismiss the causes of action alleging breach of contract.

Section 3211(a)(5) permits dismissal when a release bars the claims; once defendants establish the release, plaintiffs bear the burden of showing it is invalid.

Crane v. WP Strategic Holdings, LLC · filed 2025-09-10(a)(5)

The Court concludes that defendants have demonstrated, prima facie , that plaintiffs' claims are barred by the Release, thereby shifting the burden to plaintiffs to demonstrate its invalidity.

CPLR 3211(a)(1) requires documentary evidence that conclusively refutes the allegations in the complaint or petition.

Ramas 808 LLC v. Abosefain, LLC · filed 2025-09-16(a)(1)

A motion to dismiss pursuant to subsection (a)(1) requires documentary evidence that are "unambiguous, authentic and undeniable," Attias v. Costiera , 120 AD3d 1281 (2nd Dept 2014), must utterly refute the allegations of the underlying complaint (or petition), Kolchins v. Evolution Mkts, Inc. , 31 NY3d 100 (2018), and must conclusive refute the plaintiff's allegations.

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.

Nagubandi v. County of Rockland · filed 2025-09-17(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" ( Katz v DePaola , 211 AD3d 1020, 1021 [internal quotation marks omitted]; see Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874). ... Here, the County defendants conclusively established that the plaintiff was not entitled to the two lump sum payments set forth in the successor CBA ( see generally CPLR 3211[a][1]).

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

South Shore Eye Care, LLP v. Lane · filed 2025-10-01(a)(1)

The Supreme Court further correctly granted those branches of the motion of the plaintiffs and the counterclaim defendants which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaims ( see Leon v Martinez , 84 NY2d 83, 88; Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874). "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 at 874, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d at 88).

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

Rowan Advance Group LLC v. DraftPros, LLC · filed 2025-10-07(a)(1)

A motion pursuant to CPLR 3211(a)(1) . . . 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)(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.

Artzy v. Specialized Loan Servicing, LLC · filed 2025-10-08(a)(1)

The documentary evidence submitted by the defendant did not utterly refute the plaintiffs' allegations or conclusively establish a defense as a matter of law ( see CPLR 3211[a][1]).

Section 3211(a)(1) permits dismissal when an unambiguous contract utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense.

Herman v. Judlau Contr., Inc. · filed 2025-11-13(a)(1)

CPLR 3211(a)(1) provides for dismissal of a claim where an unambiguous contract "utterly refutes [a] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Farage v Associated Ins. Mgt. Corp. , 43 NY3d 152, 158 [2024]). Here, the motion court correctly determined that the parties' contracts squarely place any liability for prevailing wage violations on Judlau, the noncomplying contractor, not the City.

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

Abney v. Odyssey House, Inc. · filed 2025-12-09(a)(1)

Under CPLR § 3211(a)(1), dismissal is warranted where documentary evidence “utterly refutes” a plaintiff’s factual allegations and conclusively establishes a defense as a matter of law (Mill Fin., LLC v. Gillett, 122 AD3d 98, 103 [1st Dept 2014]).

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

Olshan Frome Wolosky, LLP v. Kestenbaum · filed 2025-12-09(a)(1)

Fortis Property Group failed to present any documentary evidence that utterly refuted these allegations ( see CPLR 3211[a][1]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 433 [1st Dept 2014]).

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.

Sanchez v. 12E63, LLC · filed 2025-12-10(a)(1)

Here, contrary to the determination of the Supreme Court, the documentary evidence proffered by the defendant did not utterly refute or conclusively establish a defense to the plaintiffs' Labor Law §§ 200 and 241(6) claims ( see Maursky v Latham , 219 AD3d 473, 475; Davis v Henry , 212 AD3d 597, 598). Accordingly, the court should not have directed dismissal of the complaint pursuant to CPLR 3211(a)(1).

Under CPLR 3211(a)(1), documentary evidence warrants dismissal when it utterly refutes the plaintiff's factual allegations and conclusively establishes a defense.

Sander v. Westchester Reform Temple · filed 2025-12-16(a)(1)

Defendants invoked the ministerial exception here as grounds for dismissal on a CPLR 3211 (a) (1) motion. Such a 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]). ... In these circumstances, the offer letter alone conclusively establishes that the ministerial exception applies.

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.

State of New York ex rel. Fruchtman v. Tire Rack, Inc. · filed 2025-12-17(a)(1)

"'A motion to dismiss on the ground that the 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'" ( Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC , 233 AD3d 752, 754, quoting Maursky v Latham , 219 AD3d 473, 475; see Wilmington Sav. Fund Socy., FSB v Matamoro , 200 AD3d 79, 89).

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.

Heinrichs v. Town of Brookhaven · filed 2025-12-17(a)(1)

The documentary evidence submitted by the Town defendants did not utterly refute the plaintiff's allegations, inter alia, that his employment was terminated in retaliation for his disclosure of alleged corruption to authorities in violation of Civil Service Law § 75-b or show that he does not have a cause of action on this basis ( see Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist. , 198 AD3d 896, 901; Lilley v Greene Cent. Sch. Dist. , 168 AD3d 1180, 1182).

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.

Epstein v. Cantor · filed 2025-12-17(a)(1)

As such, the agreement did not utterly refute Epstein's factual allegations that he was a partner of CEM or conclusively establish a defense as a matter of law to the second and third causes of action, alleging breach of fiduciary duty and a violation of Partnership Law § 20(3), respectively, insofar as asserted against Cantor, and the fourth cause of action, for an accounting ( see CPLR 3211[a][1]; Piccoli v Cerra, Inc. , 174 AD3d at 756-757; Esposito v Weiner , 160 AD3d 928, 930).

On a motion to dismiss based on a release, the plaintiff’s allegations and opposing affidavit receive a favorable reading; a factual dispute over the release’s validity can preclude dismissal.

Germain v. Deuel · filed 2025-12-18(a)(5)

"In resolving a motion for dismissal pursuant to CPLR 3211 (a) (5), the plaintiffs 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" Ford v. Phillips, 121 AD3d 1232, 1234 (3 rd Dept. 2014). ... Based on the foregoing, the Court concludes that it cannot make a determination based on the current evidence concerning the validity of the purported release.

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

Red Target, LLC v. Kun Resources · filed 2025-12-24(a)(1)

Moreover, the documentary evidence submitted by the defendants failed to utterly refute the plaintiff's allegations or conclusively establish a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326-327).

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

Yellin v. Revival Prop. Group, LLC · filed 2025-12-24(a)(1)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to [*3]CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC , 175 AD3d 610, 611 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88).

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

Steffens v. Wishner · filed 2025-12-24(a)(1)

Here, the NYU defendants' documentary evidence utterly refuted the plaintiff's allegations as to the NYU defendants' successor liability, thereby warranting dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes allegations of successor liability.

Barth v. Wishner · filed 2025-12-24(a)(1)

Here, the NYU defendants' documentary evidence utterly refuted Barth's allegations as to the NYU defendants' successor liability, thereby warranting dismissal of the complaint insofar as asserted against them by her pursuant to CPLR 3211(a)(1).

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.

Aguilar v. Wishner · filed 2025-12-24(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 only be granted where the documentary evidence utterly refutes the factual allegations in the complaint, thereby conclusively establishing a defense [*2]as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; IPA Asset Mgt., LLC v Schuman , 239 AD3d 619).

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

Clermont York 82nd St. LLC v. Zgodny · filed 2025-12-31(a)(1)

A CPLR § 3211(a)(1) motion founded upon documentary evidence will only be granted where the evidence ... “utterly refutes [the petitioner’s] factual allegations, conclusively establishing a defense as a matter of law.” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436 [1st Dept 2014]).

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

SM Owner, LLC v. Envoy Towers Co., L.P. · filed 2026-01-28(a)(1)

"[S]uch [a] motion 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; see Leon v Martinez , 84 NY2d 83, 88). ... Here, the partnership agreement utterly refutes the plaintiff's allegation that it became a limited partner by assignment.

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

Haji-Georgi v. Wishner · filed 2026-02-11(a)(1)

Here, the NYU defendants' documentary evidence utterly refuted the plaintiffs' allegations as to the NYU defendants' successor liability, thereby warranting dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1).

Section 3211(a)(5) permits a motion to dismiss a claim based on a release; allegations that the release was obtained under unfair circumstances can defeat dismissal.

Lercara Provisions, Inc. v. Boar's Head Provisions Co., Inc. · filed 2026-02-18(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action on the ground that it may not be maintained because of a release. ... Here, while a general release executed by the plaintiffs, by its terms, released the defendants from all known and unknown causes of action which accrued on or before November 17, 2015, the allegations in the amended complaint that the defendants threatened to stop selling products to the plaintiffs and to deny approval of the sale of the plaintiffs' distribution routes were sufficient to support a possible finding that the general release was obtained under circumstances that indicated unfairness ( see Farber v Breslin , 47 AD3d 873, 877; see also China Dev. Indus. Bank v Morgan Stanley & Co. Inc. , 86 AD3d 435, 437; Pashtrik Realty Corp. v Gjonlekaj , 234 AD2d 54, 54).

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.

Dairy King, Inc. v. Boar's Head Provisions Co., Inc. · filed 2026-02-18(a)(1)

Under CPLR 3211(a)(1), dismissal is warranted "only where the documentary evidence utterly refutes [the] factual allegations [in the complaint], 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). ... Contrary to the defendants' contention, an excerpt of the defendants' sales policy and the plaintiffs' acknowledgment thereof did not utterly refute the plaintiffs' allegations ( see Array BioPharma, Inc. v AstraZeneca AB , 184 AD3d 463, 464; Braddock v Braddock , 60 AD3d 84, 91-92).

CPLR 3211(a)(1) and (7) permit dismissal of a contractual indemnification claim when the agreement contains no indemnification provision and the submitted evidence conclusively defeats the alleged duty.

Hart v. Theatre Three Prods., Inc. · filed 2026-03-04(a)(1), (a)(7)

Moreover, VP Plumbing established its entitlement to dismissal of the third-party cause of action for contractual indemnification pursuant to CPLR 3211(a)(1) and (7) by submitting evidence showing that there was no indemnification provision in its agreement with Theatre Three, which "utterly refute[d] the plaintiff's factual allegations" regarding contractual indemnification ( Smith v Bank of N.Y. Mellon , 237 AD3d at 1129), and demonstrated that VP Plumbing's purported duty to indemnify is "not a fact at all" ( see Malan v QPS 23-10 Dev., LLC , 237 AD3d 802).

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

1002 Realty Corp. v. Gilgurd · filed 2026-03-06(a)(1)

Moreover, Gilgurd has failed to establish, through documentary evidence, that the claims asserted in the complaint are identical to those previously adjudicated or that the obligations at issue were fully satisfied. Accordingly, the branch of Gilgurd' s motion seeking dismissal of the complaint based on the doctrine of res judicata is denied.

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

Matter of Key Constr. Servs., LLC v. County of Westchester · filed 2026-03-11(a)(1)

Here, the Supreme Court properly, in effect, granted, pursuant to CPLR 3211(a)(1), the County's motion to dismiss the petition. The documentary evidence, which consisted of, among other things, the contract documents, including Addendum No. 1 to the contract, utterly refuted the petitioner's allegations that it was not responsible for the telecommunications/information technology work at issue, thereby conclusively establishing a defense as a matter of law ( see Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 909).

Section 3211(a)(1) requires documentary evidence to conclusively establish a defense before a complaint may be dismissed on that ground.

De Perez v. Fordham Valentine Assoc. LLC · filed 2026-03-19(a)(1)

Accordingly, the documentary evidence did not conclusively establish a defense to plaintiff's asserted claims as a matter of law ( see Spoleta Constr., LLC v Aspen Ins. UK Ltd. , 27 NY3d 933, 936 [2016]).

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

Town of Petersburgh v. 3M Co. · filed 2026-03-25(a)(1)

In any event, the Court finds that the documentary evidence discussed above does not establish a defense as a matter of law supporting dismissal under CPLR 3211 (a) (1) ( see generally Farage v Associated Ins. Mgt. Corp. , 43 NY3d 152, 158 [2024], quoting Goshen v Mutual Life Ins. Co. of New York , 98 NY2d 314, 326 [2002] [a motion to dismiss under CPLR 3211 (a) (1) "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"]).

A defendant moving to dismiss under CPLR 3211(a)(5) based on a release bears the initial burden of showing that the release covers the claims.

Balram v. Fiyazuddeen · filed 2026-04-08(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint based on a release, "[a] defendant bears the initial burden of establishing that he or she has been released from any claims" (Burgos v New York Presbyt. Hosp., 155 AD3d 598, 600). Here, the defendant failed to satisfy this burden (see id.; Mazzurco v PII Sam, LLC, 153 AD3d at 1342).

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.

Dimas Tower, Inc. v. North Shore Towers Apts. Inc. · filed 2026-05-06(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., 205 AD3d 714, 715; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

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

Kingdom Assoc., Inc. v. WBC Servs. Inc. · filed 2026-05-14(a)(1)

Defendant is not entitled to dismissal based on the documentary evidence pursuant to CPLR 3211(a)(1), since the evidence submitted by WBC does not "utterly refute[] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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.

Qiao v. Tang · filed 2026-06-03(a)(1)

Here, to the extent the defendants' submissions constituted documentary evidence, they did not utterly refute the plaintiff's allegations or establish a defense as a matter of law. Accordingly, the Supreme Court properly denied dismissal of the first, second, third, fourth, sixth, seventh, eighth, and ninth causes of action insofar as asserted against the defendants pursuant to CPLR 3211(a)(1).

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.

75 Cohoes Realty Assoc., LLC v. Machnick Bldrs., Ltd. · filed 2026-06-03(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; Mohawk Constr. & Supply Co., Inc. v Walsh/Consigli JV , 222 AD3d 965, 965-966).

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

Forest Hills Gardens Corp. v. West Side Tennis Club · filed 2026-06-17(a)(1)

Under CPLR 3211(a)(1), 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).

A motion to dismiss under CPLR 3211(a) based on a release should be denied when questions of fact exist about the release's validity.

Preston v. Creta · filed 2026-06-24(a)

Under these circumstances, the Supreme Court should not have granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the second cause of action on the basis of the release, as questions of fact existed as to its validity ( see Wei Qiang Huang v Llerena-Salazar , 222 AD3d at 1033-1034; Sacchetti-Virga v Bonilla , 158 AD3d at 784; Pacheco v 32-42 55th St. Realty, LLC , 139 AD3d at 834; Powell v Adler , 128 AD3d at 1041).

Under CPLR 3211(a)(5), a signed release can support dismissal when the defendant shows that it covers the claim and the plaintiff fails to show a ground to void it.

Gayle v. Jerusalem Ave, Inc. · filed 2026-06-24(a)(5)

Thus, the Jerusalem defendants met their initial burden of establishing that this action was barred by the release ( see Trepeta v Mobiquity Tech., Inc. , 241 AD3d at 970; Benjamin v Kahen , 241 AD3d at 484). In opposition, the plaintiff, who was represented by counsel, failed to show or even allege that there was fraud, duress, or some other circumstance that would be sufficient to void the release ( see Trepeta v Mobiquity Tech., Inc. , 241 AD3d at 969; Applewhite v 112 Liberty Assoc., LLC , 233 AD3d at 835).

A court may construe a CPLR 3212 motion made before an answer is filed as a CPLR 3211 motion.

Rowlands v. US Army Corps of Engrs. · filed 2024-10-23

The City respondents move pursuant to CPLR 3212, but as no answer has been filed, the Court will construe the City respondents' motion as one pursuant to CPLR 3211.

CPLR 3211(a)(5) does not provide a dismissal motion when no action or special proceeding has been instituted; a request to dismiss an arbitration demand is treated as a motion to stay arbitration.

Protocom Devices, Inc. v. Figueroa · filed 1989-09-06(a)(5)

The petitioner seeks to dismiss, pursuant to CPLR 3211 (a) (5), the respondent’s demand for arbitration dated June 6, 1989. In view of the fact that no action or special proceeding has been instituted, the motion shall be considered as one to stay arbitration pursuant to CPLR 7503 and pursuant to the ... one-year Statute of Limitations provided in CPLR 7510 and res judicata.

CPLR 3211 does not permit dismissal for failure to state a cause of action before the underlying action has commenced.

Sullivan v. Lindenhurst Union Free School District No. 4 · filed 1991-12-23(a)(7)

Nor did the court err in denying the appellant’s motion to dismiss for failure to state a cause of action. Inasmuch as no underlying action had yet been commenced, there was no cause of action to be dismissed (see, CPLR 3211).

A motion to dismiss under CPLR 3211(a)(7) is premature when the plaintiff has served a summons with notice but no complaint.

Petrova v. Investors Capital · filed 2009-05-20(a)(7)

Because a complaint has not been served, the court has no factual allegation to review so as to permit it to determine whether plaintiffs have any cognizable causes of action ... A motion to dismiss pursuant to CPLR 3211 is premature.

CPLR 3211(a)(2) permits dismissal of an amended third-party complaint that was never filed with the court.

Benn v. Losquadro Ice Co. · filed 2009-08-25(a)(2)

It is undisputed that Losquadro’s amended third-party complaint was never filed with the court. Therefore, that branch of Utica’s motion which was pursuant to CPLR 3211 (a) (2) to dismiss the amended third-party complaint insofar as asserted against it should have been granted.

CPLR 3211 does not require a motion to dismiss before a court summarily determines an article 78/Executive Law § 298 petition on the pleadings when no triable issue of fact is raised.

MALCOLM, BERNICE v. NEW YORK STATE DEPARTMENT OF LABOR · filed 2014-11-14

Contrary to petitioner’s contention, respondents were not required to move pursuant to CPLR 3211 to dismiss the petition. This is a CPLR article 78/Executive Law § 298 special proceeding to review the determination of the SDHR (see Matter of Kaplan v New York State Div. of Human Rights, 95 AD3d 1120, 1122-1123), and therefore the court was permitted to make a summary determination upon the pleadings to the extent that no triable issues of fact were raised (see CPLR 409 [b]), without the need for a CPLR 3211 motion.

A ruling on a CPLR 3211(a)(7) motion addresses the sufficiency of the pleadings and does not establish law of the case for a later summary judgment motion addressing the evidence.

DISCHIAVI, GARY M. v. CALLI, JR., WILLIAM S. · filed 2013-11-08(a)(7)

Contrary to plaintiffs’ contention, this Court’s prior order denying those parts of the respective defendants’ initial motions and cross motions “pursuant to CPLR 3211 (a) (7) to dismiss the complaint, which w[ere] addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion[s] pursuant to CPLR 3212 for summary judgment, which [were] addressed to the sufficiency of the evidence” (Thompson v Lamprecht Transp., 39 AD3d 846, 847).

A motion under CPLR 3211(a)(7) examines the adequacy of the pleadings; its denial does not bar a later summary judgment motion on the same ground under the law of the case doctrine.

State v. Barclays Bank · filed 1989-10-19(a)(7)

This doctrine is inapplicable here, however, for unlike a motion for summary judgment which searches the record and assesses the sufficiency of the parties’ evidence, a motion to dismiss for failure to state a cause of action merely examines the adequacy of the pleadings (see, supra). The two motions being distinctly different, defendant had an unimpaired right to resort to summary judgment.

When an earlier motion is treated as a CPLR 3211(a)(7) motion to dismiss, the court may consider a later motion for summary judgment on the merits.

Schwartz v. Light · filed 1991-05-06(a)(7)

Because of the Lichts’ equivocal characterization of the first motion and the court’s treatment of it as one for a dismissal pursuant to CPLR 3211 (a) (7), we find no error in the Supreme Court’s addressing of the merits of the second motion which is clearly a motion for summary judgment.

A motion to dismiss under CPLR 3211(a) does not authorize the opposing party to cross move for summary judgment before issue is joined.

Fargo v. Watertown Education Ass'n · filed 1991-07-12(a)

The fact that defendants moved for an order of dismissal pursuant to CPLR 3211 (a) did not authorize Supreme Court to entertain plaintiff’s cross motion for summary judgment (see, City of Rochester v Chiarella, 65 NY2d 92, 101-102).

A summary judgment motion may request relief on legal grounds cognizable under CPLR 3211(a).

First National Bank v. J. & J. Milano, Inc. · filed 1993-07-19(a)

In First Natl. Bank v J. & J. Milano (supra), this Court did not direct a trial on the counterclaims, and thus the plaintiff was not precluded from making a motion for summary judgment, which may, as a matter of course, include a prayer for relief based on legal grounds cognizable under CPLR 3211 (a) (see, CPLR 3212; Siegel, NY Prac § 283 [2d ed]).

A motion under CPLR 3211(a)(7) tests the sufficiency of the pleadings, so its denial does not bar a later motion for summary judgment under the law-of-the-case doctrine.

Del Castillo v. Bayley Seton Hospital · filed 1996-10-28(a)(7)

The law of the case doctrine is inapplicable in such a situation because a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action, which addresses merely the sufficiency of the pleadings, is distinct from a motion for summary judgment pursuant to CPLR 3212, which searches the record and looks to the sufficiency of the underlying evidence (see, Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469).

A ruling on a CPLR 3211 motion to dismiss does not establish law of the case for a later summary judgment motion.

Gannone v. Wittman · filed 1996-10-24

Law of the case doctrine is not applicable here because the earlier motion was a motion to dismiss pursuant to CPLR 3211 while the instant motion is one for summary judgment (Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469).

A prior denial of a CPLR 3211(a)(7) motion does not, by itself, prevent summary judgment.

Wallice v. Waterpointe at Oakdale Shores, Inc. · filed 1998-04-13(a)(7)

Neither the prior denial of the Bank’s motion pursuant to CPLR 3211 (a) (7) nor ... the plaintiffs purported need for further discovery is sufficient to deny summary judgment in this case (see, Schwartz v Licht, 173 AD2d 458, 460; Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 495).

A ruling on a Section 3211(a)(7) motion to dismiss does not bind the court on a later summary judgment motion under the law of the case doctrine because the motions have distinct scopes of review.

Bernard v. Grenci · filed 2008-02-26(a)(7)

Initially, the Supreme Court’s reliance on the law of the case doctrine was misplaced. That doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss (see Riddick v City of New York, 4 AD3d 242, 245 [2004]; Gannone v Wittman, 232 AD2d 298 [1996]), as the scope of review applicable to each motion is distinct (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

After issue is joined, grounds for dismissal under CPLR 3211(a) that were asserted in the answer may support a motion for summary judgment.

Fischer v. RWSP Realty, LLC · filed 2008-07-22(a)

Although a motion for summary judgment is usually based upon the overall merits of the case rather than on an individual defense, once issue has been joined, a motion for summary judgment may be based on CPLR 3211 (a) grounds which have been asserted in the answer (see Mann v Malasky, 41 AD3d 1136 [2007]; Houston v Trans Union Credit Info. Co., 154 AD2d 312 [1989]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:20).

Denial of a CPLR 3211 motion that was not converted to summary judgment does not bar a later summary judgment motion under the law of the case doctrine.

Moses v. Savedoff · filed 2012-06-07

Defendant’s first motion was to dismiss under CPLR 3211; the court declined to convert that pre-answer motion to a summary judgment motion. Thus, the law of the case doctrine was inapplicable to defendant’s subsequent summary judgment motion pursuant to CPLR 3212.

A prior denial of a CPLR 3211 motion does not preclude consideration of the same issue on summary judgment because the procedural posture differs.

Bodtman v. Living Manor Love, Inc. · filed 2013-04-02

Moreover, contrary to the motion court’s finding that its prior denial of a motion to dismiss pursuant to CPLR 3211 precluded it from considering this issue, the prior ruling did not constitute law of the case, given the difference in procedural posture (see Moses v Savedoff, 96 AD3d 466, 468 [1st Dept 2012]).

After issue is joined, a party may seek summary judgment on CPLR 3211(a) grounds asserted in its answer.

Vision Accomplished, Inc. v. Lowe Properties, LLC · filed 2015-09-23(a)

“A motion for summary judgment may be made after issue has been joined based on CPLR 3211 (a) grounds which have been asserted in the answer” (Light v Light, 64 AD3d 633, 634 [2009]; see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595 [2008]). Here, the verified answer interposed by the defendants included, as the first affirmative defense, the contention that the complaint failed to state a cause of action.

A prior motion to dismiss under CPLR 3211(a) does not preclude a later motion for summary judgment under CPLR 3212.

Harris v. Barbera · filed 2018-07-05(a)

Initially, contrary to the plaintiff's contention, this Court's order on the prior appeal with respect to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint does not preclude the present motion pursuant to CPLR 3212 for summary judgment dismissing the complaint ( see Bernard v Grenci, 48 AD3d 722, 724; see also Beach v Touradji Capital Mgt., LP, 128 AD3d 501, 502).

Surviving a motion to dismiss under CPLR 3211(a)(7) does not establish that a claim can survive summary judgment, which applies different evidentiary standards and burdens.

Agulnick v. Agulnick · filed 2020-12-09(a)(7)

We reject the argument, as the evidentiary standards and burdens applied for determining dismissal motions under CPLR 3211(a)(7) differ from those applied to summary judgment motions under CPLR 3212 ( see Milone v US Bank N.A. , 164 AD3d 145, 155).

A motion to dismiss for lack of personal jurisdiction does not require a hearing on service when the defendants fail to rebut the process server's affidavit.

Nationstar Mtge., LLC v. Cohen · filed 2020-07-29(a)(8)

The affidavit of a process server constituted prima facie evidence of proper service ( see HSBC Bank USA, N.A. v Whitter , 159 AD3d 942, 945; U.S. Bank, N.A. v Tauber , 140 AD3d 1154, 1155). ... Accordingly, since a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed.

When a material factual dispute prevents resolution of a personal jurisdiction motion, section 3211(c) permits the court to resolve it at an immediate hearing.

Chamberlain v. Peak · filed 1989-11-09(c)

The presence of this factual issue requires that the *770 matter be resolved by an immediate hearing pursuant to CPLR 3211 (c) or, less preferably, at trial (see, Pellegrino v Stratton Corp., supra, at 1169; Noble Co. v Singapore Resort Motel, 21 NY2d 1006, 1008; Darienzo v Selbern Shoe Co., 41 AD2d 736, 737).

CPLR 3211(c) permits a trial limited to a factual issue raised on a motion to dismiss, including whether a release was obtained through duress.

Art Stone Theatrical Corp. v. Technical Programming & System Support of Long Island, Inc. · filed 1990-01-16(c)

We disagree and remit the matter for a trial pursuant to CPLR 3211 (c) on the issue of duress.

CPLR 3211(c) leaves the decision to order an immediate hearing before trial to the trial court’s sound discretion.

LaBrake v. Enzien · filed 1990-11-21(c)

Under CPLR 3211 (c), the authority to order an immediate hearing in advance of trial is a matter left to the sound discretion of the trial court ... Here, there is no showing that Supreme Court abused its discretion in this regard.

Section 3211(c) permits referral of limited issues to a referee when resolving them is likely to dispose of the case.

Trust Co. of New Jersey v. Young · filed 1991-01-24(c)

However, the IAS court appropriately framed the limited issues to be dealt with and referred them to a Referee.

Section 3211(c) permits a trial to resolve a factual issue material to a dismissal motion when the affidavits do not conclusively establish it.

Stewart v. State · filed 1998-03-05(c)

In our opinion, the record does not conclusively establish a de facto taking (compare, Sassone v Town of Queensbury, 157 AD2d 891). Therefore, rather than deciding the dismissal motion on the affidavits alone, the Court of Claims should have conducted a trial (see, CPLR 3211 [c]) to determine the issue of whether there has been a de facto appropriation of claimants’ lands or merely a trespass (cf., Back O’Beyond v Telephonic Enters., 76 AD2d 897; Usher v Usher, 41 AD2d 368); the matter is remitted to the Court of Claims for such a trial.

Section 3211(c) permits an immediate trial of a factual issue when the record does not allow a motion to dismiss to be decided as a matter of law.

New York Institute of Technology v. Ponte Management, Inc. · filed 1998-11-02(c)

It cannot be determined as a matter of law based upon this record that construction was completed prior to September 5, 1990. Therefore, the matter is remitted to the Supreme Court, Nassau County, for an immediate trial pursuant to CPLR 3211 (c) on that issue, and for a new determination of that branch of the motion of the defendant Meadow which was to dismiss the complaint as barred by the Statute of Limitations.

Section 3211(c) permits an immediate trial of disputed factual issues raised on a motion to dismiss for lack of personal jurisdiction.

L & R Exploration Venture v. Grynberg · filed 2003-01-09(c)

Where petitioners are attempting to compel arbitration on the basis of an arbitration provision contained in a joint venture agreement which, by its terms, expired on January 1, 1964, the motion court, which was presented with respondents’ cross motion to dismiss the petition for lack of personal jurisdiction and conflicting claims regarding respondent Jack Grynberg’s contacts with New York, properly ordered an immediate trial of the factual issues raised on the motion (CPLR 3211 [c]).

A motion to dismiss for lack of personal jurisdiction requires a traverse hearing when conflicting affidavits raise a factual issue about service of process.

Bart-Rich Enterprises, Inc. v. Boyce-Canandaigua, Inc. · filed 2004-06-14(a)(8)

Respondent (hereinafter defendant) moved to dismiss the complaint for lack of personal jurisdiction (see CPLR 3211 [a] [8]), contending that its office manager was not authorized to accept service on its behalf (see CPLR 311 [a] [1]). We conclude that the court “improperly resolved the issue of service of process on the basis of conflicting affidavits when a traverse hearing was required” (Ananda Capital Partners v Stav Elec. Sys. [1994], 301 AD2d 430, 430 [2003]).

CPLR 3211(c) provides for an evidentiary hearing when the record lacks evidence needed to resolve a time-bar dismissal motion.

Dey v. New York State Teachers' Retirement System · filed 2004-07-09(c)

As respondent correctly concedes, an evidentiary hearing is necessary because the record contains no evidence concerning the date on which the determination was actually received by petitioner. We therefore reverse the judgment, reinstate the amended petition, and remit the matter to Supreme Court for an evidentiary hearing pursuant to CPLR 3211 (c) on that issue.

On a motion to dismiss for lack of personal jurisdiction, a defendant’s evidence raising a factual question about personal service warrants a traverse hearing.

Doe v. Zeder · filed 2004-09-23(a)(8)

Here, the court finds that, collectively, defendant Keating’s proof on the issue of denial of personal service is sufficient to raise a question of fact as to whether defendant Keating was served with the summons and complaint on March 20, 2003 as alleged by Mr. Aretakis. Accordingly, the court finds that defendant Keating is entitled to a traverse hearing on the issue of personal service of the summons and complaint on March 20, 2003.

CPLR 3211(c) provides for an immediate trial when a motion to dismiss raises a factual issue about personal jurisdiction.

Vandermark v. Jotomo Corp. · filed 2007-07-06(c)

Supreme Court erred in summarily denying that part of the motion with respect to MRC and, instead, should have conducted an immediate trial pursuant to CPLR 3211 (c) on the issue of personal jurisdiction raised on the motion.

On a motion to dismiss for lack of personal jurisdiction, disputed service of process may require a hearing before the motion is decided.

Segarra v. Evans · filed 2008-02-13(a)(8)

Under the circumstances of this case, considering the affidavits of service, the unclaimed certified mailing envelopes, and the certificates of ordinary mailing, before the motion can be decided, a hearing is necessary in light of the defendants’ sworn denials of receipt of process, in order to determine whether there was compliance with the service and filing requirements of the statute (see Balancio v Santorelli, 267 AD2d 189 [1999]; Jean-Laurent v Nicholas, 182 AD2d 805 [1992]).

A defendant’s detailed, specific sworn challenge to service entitles her to a hearing on personal jurisdiction before the court decides a motion to dismiss under Section 3211(a)(8).

Zion v. Peters · filed 2008-04-15(a)(8)

The defendant’s sworn, detailed, and specific statements that she no longer resided at the address recited in the process server’s affidavit of service when service of the summons and complaint was purportedly made pursuant to CPLR 308 (4), ... entitled her to a hearing, before a determination of her motion to dismiss, on the issue of whether personal jurisdiction was acquired over her ... . Therefore, we remit the matter to the Supreme Court, Kings County, for such a hearing and a new determination thereafter.

On a motion under CPLR 3211(a)(8), a defendant challenging service of process may be entitled to a hearing on whether service was proper.

Zernitsky v. Shurka · filed 2012-04-10(a)(8)

Considering that affidavit, for the same reason that the Supreme Court directed a hearing as to whether proper service of process was made upon the defendant Melanie Shurka, who allegedly was served at the same time and in the same manner as Nancy Shurka, the defendants were entitled to a hearing on the issue of whether proper service of process was made upon Nancy Shurka. Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for a hearing on the issue of whether proper service of process was made upon the defendant Nancy Shurka and, thereafter, for a new determination of that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against the defendant Nancy Shurka.

A court deciding a CPLR 3211 motion may rule on submitted papers and documentary evidence without an evidentiary hearing.

Black v. Black · filed 2013-07-03(c)

Accordingly, we discern no abuse of discretion in Supreme Court’s determination to decide the motion on the papers and documentary evidence submitted on the ... motion rather than holding an evidentiary hearing (see Von Thaden v Groves & Sons Co., 97 AD2d 677, 678 [1983]; see also CPLR 3211 [c]).

When evidence rebuts the presumption of proper service, a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction requires a hearing on service before determination.

Lazarre v. Davis · filed 2013-09-25(a)(8)

Thus, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether Tassy was properly served with process, and thereafter for a new determination of his motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

CPLR 3211(a)(1) and (7) motions do not warrant a hearing to resolve disputed facts; they must be decided on the motion papers.

3615-15 Realty I, LLC v. Bedford Avenue Associates I, LLC · filed 2014-08-06(a)(1), (a)(7)

Neither of these issues warranted a hearing to determine disputed facts (see Furman v Wells Fargo Home Mtge., Inc., 105 AD3d 807, 810 [2013]).

A motion to dismiss under CPLR 3211(a)(8) requires a hearing when the evidence raises a factual dispute about whether the defendant was properly served.

Teitelbaum v. North Shore-Long Island Jewish Health System, Inc. · filed 2014-12-24(a)(8)

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a hearing on, and a new determination of, the plaintiffs motion pursuant to CPLR 3215 (a) for leave to enter judgment on the issue of liability against the defendant and the defendant’s cross motion, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint on the ground of lack of personal jurisdiction. ... The affidavit submitted by the defendant was sufficient to rebut the allegations contained in the affidavit of service and raise issues of fact as to whether the defendant was properly served ... Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served and, thereafter, for a new determination of the plaintiffs motion and the defendant’s cross motion.

When service is disputed on a CPLR 3211(a)(8) motion, the court must hold a hearing to determine by a preponderance of the evidence whether service was valid.

Wilbyfont v. New York Presbyterian Hospital · filed 2015-08-19(a)(8)

Accordingly, a hearing is required to determine, by a preponderance of the evidence, if the appellant was validly served with process pursuant to CPLR 308 (2), and we remit the matter to the Supreme Court, Kings County, for such a hearing and thereafter a new determination of the appellant’s cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction (see Rosario v NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 833 [2013]).

On a CPLR 3211 motion to dismiss, the court cannot resolve a disputed factual issue about a defendant’s status.

Schroeder v. Pinterest Inc. · filed 2015-10-06

Simply put, Cohen's status with the companies at the time of the alleged breach is a disputed issue of fact that cannot be resolved on this pleading motion ( see Dionisi , 1995 WL 398536 at *8, 1995 Del Ch LEXIS 88 at *22 ["Determining whether a director or officer has resigned is a question of fact determined by the circumstances of each case"]).

On a motion to dismiss for lack of personal jurisdiction, a denial of service warrants a hearing only if specific, detailed facts contradict the process server’s affidavit.

Washington Mutual Bank v. Huggins · filed 2016-06-08(a)(8)

In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service (see e.g. Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985 [2016]; Machovec v Svoboda, 120 AD3d 772 [2014]; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824 [2011]).

A court must hold a hearing on a CPLR 3211 (a) (8) motion when specific sworn facts rebut the process server’s affidavit of service.

Citibank, N.A. v. Balsamo · filed 2016-11-23(a)(8)

The Supreme Court erred in denying the motion of the defendants Don Balsamo and Janet L. Balsamo (hereinafter together the defendants) pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction without conducting a hearing.

A court deciding a motion to dismiss for lack of personal jurisdiction must hold a hearing when proper service remains factually disputed.

Purzak v. Long Island Housing Services, Inc. · filed 2017-04-19(a)(8)

The Supreme Court erred in granting, without a hearing, that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against LIHS on the ground of lack of personal jurisdiction.

On a motion to dismiss for lack of personal jurisdiction, a specific sworn denial that rebuts the presumption of proper service requires a hearing before the motion is determined.

Rosemark Contractors, Inc. v. Ness · filed 2017-04-26(a)(8)

However, the appellants’ affirmations submitted in support of their motion pursuant to CPLR 3211 (a) (8) to dismiss the amended complaint insofar as asserted against them rebutted that presumption. ... Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the appellants were properly served with process pursuant to CPLR 308 (1), and thereafter, a new determination of the appellants’ motion.

A motion to dismiss for lack of personal jurisdiction requires a hearing when material facts about service of process are disputed.

JP Morgan Chase Bank, NA v. Adventure Corp. · filed 2017-11-29(a)(8)

The Supreme Court improperly denied, without a hearing, the subject branches of the defendant’s motion. ... Under the circumstances, a hearing was required on the issue of whether the defendant was properly served with process.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction based on improper service, and a specific sworn denial of service can require an evidentiary hearing.

Trovato v. Galaxy Sanitation Servs. of N.Y., Inc. · filed 2019-04-03(a)(8)

Under the circumstances, the Supreme Court should conduct a hearing on the issue of whether Cholowsky was properly served and, thereafter, make a new determination of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) and 306-b to dismiss the complaint insofar as asserted against Cholowsky for lack of personal jurisdiction based on improper service of process ( see Mizerek v Rosenfeld , 162 AD3d 1005, 1007; Bank of Am., N.A. v Latif , 148 AD3d 967, 969).

CPLR 3211(a) requires a hearing before dismissal for improper service when sworn statements about service conflict.

Kowlessar v. Darkwah · filed 2019-05-08(a)

Upon reargument, the Supreme Court should not have adhered, on the ground of improper service, to its prior determination granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against Kwame without first conducting a hearing.

Section 3211(a)(8) requires a hearing when a motion challenging personal jurisdiction through disputed service cannot be resolved on the papers.

US Bank, Natl. Assn. v. Schumacher · filed 2019-05-15(a)(8)

The Supreme Court should not have denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him without conducting a hearing.

On a motion to dismiss for lack of personal jurisdiction, a defendant's specific sworn challenge to the service address can rebut a process server's affidavit and require a hearing on service.

David v. Singletary · filed 2020-02-26(a)(8)

The defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. ... In opposition, the defendant averred, inter alia, that he had moved away from the address at issue in the months following the collision, and that he had resided at the new residence since that time. This submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing ( see U.S. Bank, N.A. v Arias , 85 AD3d 1014, 1016).

When evidence rebuts a process server’s affidavit, a court must hold a hearing on service before determining a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction.

Wells Fargo Bank, N.A. v. Rinderman · filed 2021-01-20(a)(8)

Contrary to the plaintiff's contention, the evidence it submitted in opposition to the defendant's motion was not dispositive of the issue of whether service at the mortgaged premises was proper under CPLR 308(2), and a hearing on the validity of service of process should have been held ( see Central Mtge. Co. v Ward , 127 AD3d at 804). Accordingly, we remit the matter to the Supreme Court, Richmond County, for a hearing to determine whether the defendant was properly served with process and a new determination thereafter of those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.