N.Y. C.P.L.R. § 3211

CPLR 3211(d) discovery cannot rest on an unsubstantiated hope that it will salvage a claim.

245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC · filed 2024-01-30(d)

An "unsubstantiated hope that discovery and time will help salvage [plaintiff's] claims" is an insufficient basis for CPLR 3211(d) discovery ( see Freeman v Brecher , 155 AD3d 453, 454 [1st Dept 2017]).

Section 3211(g)(3) permits limited discovery to oppose an anti-SLAPP motion to dismiss when the nonmoving party makes a sworn showing of specific reasons it cannot present essential facts.

Isaly v. Garde · filed 2024-02-14(g)(3)

Pursuant to CPLR 321 l(g)(3) (emphasis added), "[t]he court, on noticed motion and upon a showing by the nonmoving party, by affidavit or declaration under penalty of perjury that, for specified reasons, it cannot present facts essential to justify its opposition, may order that specified discovery be conducted," that "shall be limited to the issues raised in the motion to dismiss." Plaintiff has not met this burden.

CPLR 3211(g)(3) permits specified discovery during a motion to dismiss when the nonmoving party identifies the essential facts it cannot present and explains why.

Rosati v. Altice USA, Inc. · filed 2024-03-27(g)(3)

Here, the Supreme Court properly denied the plaintiff's motion for leave to conduct discovery because the plaintiff failed to satisfy the requirements of CPLR 3211(g)(3) by specifying the reasons and the essential facts he could not present to justify his opposition to the defendants' motion ( see generally id. § 3212[f]; Tarasiuk v Levoritz , 216 AD3d 1031, 1035; Colantonio v Mercy Med. Ctr. , 135 AD3d 686, 693).

Section 3211(d) permits denial of a motion when facts essential to opposing it may exist but cannot yet be stated.

M.O. v. Archdiocese of N.Y. · filed 2024-06-27(d)

Therefore, dismissal of the negligence claims asserted against it was properly denied on this ground, as "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3211[d]; see G.T. v Roman Catholic Diocese of Brooklyn, N.Y. , 211 AD3d at 413; ARK265 Doe v Archdiocese of N.Y. , 221 AD3d 422, 423 [1st Dept 2023]).

Section 3211(d) permits a court to defer dismissal for discovery when facts essential to oppose the motion may exist but cannot yet be stated.

Matter of Jacobs v. Basile · filed 2024-11-07(d)

A trial court has the discretion to deny a motion to dismiss if it appears that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3211 [d]; see Dine-A-Mate v J.B. Noble's Rest. , 240 AD2d 802, 804 [3d Dept 1997]; see also Lemle v Lemle , 92 AD3d 494, 499 [1st Dept 2012]).

Section 3211(d) permits a court to deny dismissal when essential facts may exist but cannot yet be stated; a party seeking discovery must identify what it may reveal and how it could defeat the motion.

American Home Assur. Co. v. SBP N.Y., LLC · filed 2024-12-23(d)

Finally, although the court has discretion to deny this branch of the motion if “it appear[s] from affidavits submitted in opposition…that facts essential to justify opposition may exist but cannot then be stated” (CPLR § 3211 [d]), there is no basis to exercise such discretion here.

CPLR 3211(d) does not warrant denial of a motion to dismiss based on a mere hope that discovery will reveal facts essential to opposition.

Cardona v. County of Orange · filed 2026-01-21(d)

However, "the mere hope that discovery may reveal facts essential to justify opposition does not warrant denial of the motion" ( Vasquez v Kennedy , 221 AD3d 936, 939 [internal quotation marks omitted]). Here, the plaintiff did not make a sufficient showing that facts essential to justify opposition to the defendants' motion could be yielded during discovery ( see Morey v Babe Ruth League, Inc. , 227 AD3d 694, 696; Vasquez v Kennedy , 221 AD3d at 939).

Section 3211(d) permits a court to deny a motion to dismiss pending discovery, but an unsubstantiated hope of finding relevant evidence does not justify that relief.

EncoreVet Group LLC v. Animal Imaging Partners, Inc. · filed 2026-03-05(d)

A motion to dismiss may be denied pending further discovery pursuant to CPLR 3211(d). ... A plaintiff, however, may not rely solely upon speculation or an unsubstantiated hope of discovering something relevant to its claims ( see e.g. Greg Beeche, Logistics, LLC , 210 AD3d at 1161; Leonard , 68 AD3d at 410). ... The Court further declines to exercise its discretion to deny the motion under CPLR 3211(d).

CPLR 3211(d) requires an evidentiary basis for believing discovery will reveal facts needed to oppose dismissal; mere hope is insufficient.

Meirowitz v. Alperin · filed 2026-03-11(d)

Here, plaintiff fails to provide an ... evidentiary basis for his belief that discovery will reveal that the parties entered into a contractual agreement, whether express or implied.

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the court accepts the petition’s allegations as true and gives petitioners every possible favorable inference.

Matter of Mendoza v. New York State Div. of Hous. & Community Renewal · filed 2020-05-06(a)(3)

The respondent United T, LLC (hereinafter United T), moved pursuant to CPLR 3211(a)(3) to dismiss the petition insofar as asserted by Vinicio Valera, Addiel Mendoza, and William Torres. ... Accepting the facts as alleged in the petition as true and according the petitioners the benefit of every possible favorable inference, Vinicio Valera, Addiel Mendoza, and William Torres have pleaded facts which are sufficient to establish standing in this proceeding ( see New York State Assn. of Nurse Anesthetists v Novello , 2 NY3d 207, 211; Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211(a)(3) permits dismissal for lack of standing, while CPLR 3211(a)(5) permits dismissal based on collateral estoppel.

Deutsche Bank Natl. Trust Co. v. Murray · filed 2019-10-30(a)(3), (a)(5)

Since the defendants failed to eliminate questions of fact as to the plaintiff's standing as the holder of the note at the time of the commencement of this action, the Supreme Court, upon reargument, should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them ( see Bank of N.Y. Mellon v Chamoula , 170 AD3d 788; BAC Home Loans Servicing, LP v Rychik , 161 AD3d 924, 925-926; New York Community Bank v McClendon , 138 AD3d at 806; HSBC Mtge. Corp. [USA] v MacPherson , 89 AD3d 1061, 1062). ... Accordingly, since the defendants failed to establish that the issue of the plaintiff's standing to commence the prior action was identical to the issue of the plaintiff's standing to commence the instant action, the court, upon reargument, should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them based on the doctrine of collateral estoppel.

Section 3211(a)(3) permits dismissal when a petitioner lacks standing to maintain the proceeding or action.

Matter of Melrose Credit Union v. City of New York · filed 2018-05-02(a)(3)

Accordingly, the Supreme Court should have granted that branch of the City respondents' cross motion which was pursuant to CPLR 3211(a)(3) and 7804(f) to dismiss the petition/complaint insofar as asserted against them on the ground that Progressive lacked standing to maintain this proceeding/action.

CPLR 3211(a)(3) permits dismissal of a complaint for lack of standing.

US Bank Natl. Assn. v. Mehta · filed 2019-03-06(a)(3)

The Supreme Court properly denied the defendant's cross motion pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against her for lack of standing. The cross motion was precluded by the Supreme Court's prior order dated November 29, 2010, which, among other things, granted those branches of the plaintiff's motion which were for summary judgment on the complaint and to dismiss the defendant's answer ( cf. Countrywide Home Loans, Inc. v Campbell , 164 AD3d 646, 647; First Franklin Fin. Corp. v Alfau , 157 AD3d 863, 865).

Under CPLR 3211(a)(3), a defendant moving to dismiss for lack of standing must establish prima facie that the plaintiff lacks standing, while the plaintiff need only raise a question of fact to defeat the motion; CPLR 3211(a)(5) permits dismissal based on collateral estoppel when its requirements are met.

Bank of N.Y. Mellon v. Chamoula · filed 2019-03-13(a)(3) and (a)(5)

On a defendant's motion pursuant to CPLR 3211(a)(3) to dismiss the complaint based [*2]upon the plaintiff's alleged lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]; U.S. Bank N.A. v Clement , 163 AD3d 742, 743; Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 719).

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks standing to sue on rights it transferred and did not validly reacquire.

Craft EM CLO 2006-1, Ltd. v. Deutsche Bank AG · filed 2019-12-19(a)(3)

The court, in the order entered October 19, 2018, correctly granted defendant's motion to dismiss pursuant to CPLR 3211(a)(3) for lack of standing.

On a motion to dismiss for lack of standing, the defendant bears the initial burden of establishing the plaintiff’s lack of standing as a matter of law.

Ditech Fin., LLC v. Rapuzzi · filed 2020-10-07(a)(3)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see U.S. Bank N.A. v Clement , 163 AD3d 742, 743). Here, the defendant failed to meet that burden.

A defendant moving under CPLR 3211(a) to dismiss a mortgage foreclosure complaint for lack of standing must establish, prima facie, that the plaintiff lacked standing.

HSBC Bank USA, N.A. v. Viverito · filed 2020-12-02(a)

The defendant cross-moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of standing and for failure to comply with RPAPL 1304 and 1306. ... In light of this evidence that the plaintiff possessed the note at the commencement of this action ( see U.S. Bank Trust, N.A. v O'Driscoll , 168 AD3d at 784-785; U.S. Bank N.A. v Ehrenfeld , 144 AD3d 893, 894), the defendant failed to establish, prima facie, that the plaintiff lacked standing ( see Bank of N.Y. Mellon Trust Co., NA v Obadia , 176 AD3d 1020, 1021).

On a pre-answer motion to dismiss for lack of standing, the defendant bears the initial burden of establishing the plaintiff's lack of standing.

Borrelli v. Thomas · filed 2021-06-11(a)(3)

"Where, as here, a defendant makes a pre-answer motion to dismiss based on lack of standing, 'the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied' " ( Matter of Violet Realty, Inc. v County of Erie , 158 AD3d 1316, 1317 [4th Dept 2018], lv denied 32 NY3d 904 [2018]).

CPLR 3211(a)(3) permits dismissal for lack of standing when the named plaintiff did not suffer the alleged injury.

Perez v. Garden Prop. Assoc., LLC · filed 2021-11-09(a)(3)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about November 2, 2020, which, to the extent appealed from as limited by the briefs, granted defendants Garden Property Associates, LLC and Langsam Property Service Corp.'s motion to dismiss the complaint as against them pursuant to CPLR 3211(a)(3), and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs. ... The complaint was correctly dismissed for lack of standing. It is undisputed that plaintiff Anthony Perez was not injured in defendants' apartment on the day in question and therefore cannot claim that he suffered an injury for which defendants are responsible.

Under CPLR 3211(a)(3), a defendant moving to dismiss for lack of standing must make a prima facie showing that the plaintiff lacks standing.

Fossella v. Adams · filed 2024-02-21(a)(3)

Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, "'the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing'" ( Golden Jubilee Realty, LLC v Castro , 196 AD3d 680, 682, quoting BAC Home Loans Servicing, LP v Rychik , 161 AD3d 924, 925).

Section 3211(a)(3) permits dismissal when the plaintiff lacks standing to bring the claim.

Hayward v. Site 4 DSA Owner LLC · filed 2024-04-16(a)(3)

Additionally, Tenant has no standing to enforce the regulatory agreement between defendant and the City of New York; such authority is granted solely to the City and the New York City Department of Housing Preservation and Development ( see CPLR 3211[a][3]; Concerned Cooper Gramercy Tenants' Assn. v New York City Educ. Constr. Fund , 304 AD2d 412 [1st Dept 2003]).

CPLR 3211(a)(3) permits dismissal when the plaintiff lacks standing.

Donnelly v. Teachers Fed. Credit Union · filed 2024-06-20(a)(3)

The Supreme Court also properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint on the ground that the plaintiff lacked standing. "'A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest'" ( Estate of Kraft v Kraft , 220 AD3d 748, 750, quoting Silver v Pataki , 96 NY2d 532, 539). Contrary to the defendant's contention, its unilateral attempt to refund the plaintiff's disputed fees did not render the instant action academic ( see Naposki v First Natl. Bank of Atlanta , 18 AD3d 835, 835-836).

On a motion to dismiss for lack of standing, the defendant bears the initial burden, and the motion fails if the plaintiff raises a question of fact about standing.

Whitson's Food Serv., LLC v. A.R.E.B.A.-Casriel, Inc. · filed 2024-09-18(a)(3)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged [*2]lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" ( Golden Jubilee Realty LLC v Castro , 196 AD3d 680, 682 [internal quotation marks omitted]; see CPLR 3211[a][3]). ... However, in opposition, the plaintiff raised a question of fact as to its standing, primarily through its submission of an affidavit of its chief financial officer, who attested that the merger was a mere change in corporate form that had no effect on the beneficial ownership, possession, control, or daily operations of the business ( see Brentsun Realty Corp. v D'Urso Supermarkets, Inc. , 182 AD2d 604, 605).

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the defendant bears the initial burden of establishing that the plaintiff lacks standing as a matter of law.

Egorchenko v. Paul · filed 2024-10-22(a)(3)

On a defendant's motion to dismiss under CPLR 3211(a)(3) upon plaintiff's alleged lack of standing, the burden is on the defendant to establish, prima facie, that the plaintiff lacks standing to sue as matter of law.

CPLR 3211(a)(3) permits dismissal when petitioners lack standing because their alleged future costs are speculative.

Matter of County of Orange v. City of New York · filed 2024-11-20(a)(3)

Accordingly, the Supreme Court should have denied the petitioners' motion for a preliminary injunction and granted those branches of the City respondents' cross-motion which were to dismiss the second, third, fourth, and fifth causes of action insofar as asserted against them ( see CPLR 3211[a][3]).

A petitioner defeats a CPLR 3211(a)(3) standing motion by raising a question of fact about standing; it need not establish standing as a matter of law.

265 E. 66th LLC v. Yegerman · filed 2025-11-13(a)(3)

To defeat a motion pursuant to CPLR 3211 (a) (3), petitioner "has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the [petitioner's] submissions raise a question of fact as to its standing" ( MLB Sub I, LLC v Bains , 148 AD3d 881, 882 [2017] [internal quotation marks and citation omitted]).

A defendant moving to dismiss for lack of standing under CPLR 3211(a)(3) bears the initial burden of establishing the plaintiff's lack of standing.

Hildreth Real Estate Advisors, LLC v. Learned Hands Ct., LLC · filed 2026-03-25(a)(3)

Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" ( Golden Jubilee Realty, LLC v Castro , 196 AD3d 680, 682 [internal quotation marks omitted]; see BAC Home Loans Servicing, LP v Rychik , 161 AD3d 924, 925).

A CPLR 3211(a)(7) motion cannot resolve a defense that turns on factual, evidentiary matters outside the complaint.

Leon-Burgos v. New York City Tr. Auth. · filed 2024-10-09(a)(7)

Additionally, the applicability of the Graves Amendment cannot be decided on a motion to dismiss pursuant to CPLR 3211 (a) (7), as the applicability of the Graves Amendment turns on factual, evidentiary matters that are outside the four corners of the complaint.

CPLR 3211(a)(7) permits dismissal when the pleading fails to state a cause of action, subject to the stated evidentiary material standard.

Mazzei v. Metropolitan Transp. Auth. · filed 2018-09-12(a)(7)

Where, as here, evidentiary material is submitted and considered on a motion [*2]pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it ( see Leon v Martinez , 84 NY2d 83, 88; Guggenheimer v Ginzburg , 43 NY2d 268, 275).

When a court considers evidence outside the pleading on a CPLR 3211(a)(7) motion without converting it to summary judgment, it asks whether the pleader has a cause of action, rather than whether the pleading states one.

Matter of Jonmark Corp. v. New York State Liq. Auth. · filed 2018-05-04(a)(7)

We add only that, contrary to the contention of petitioner, the court did not err in granting Addys' pre-answer CPLR 3211 (a) (7) motion to dismiss the petition against it. Where " evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one' " ( Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist. , 145 AD3d 1072, 1073 [2d Dept 2016], lv denied 30 NY3d 905 [2017]; see generally Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

CPLR 3211(a)(7) permits affidavits and other evidentiary materials to support dismissal when they conclusively establish that the plaintiff has no cause of action.

Jeanty v. State of New York · filed 2019-08-22(a)(7)

It is well established that affidavits and other evidentiary materials are admissible to support a motion to dismiss pursuant to CPLR 3211 (a) (7) ( see Liberty Affordable Hous., Inc. v Maple Ct. Apts. , 125 AD3d 85, 88-91 [4th Dept 2015]), and it is equally well established that such affidavits and materials will warrant dismissal under that provision if they " establish conclusively that [the] plaintiff has no cause of action' " ( id. at 89, quoting Rovello v Orofino Realty Co. , 40 NY2d 633, 635 [1976]; see generally Warney v State of New York , 16 NY3d 428, 434-435 [2011]).

On a motion to dismiss under CPLR 3211(a)(7), affidavits and other evidence can save an inartfully pleaded but potentially meritorious complaint from dismissal.

Ninth Space LLC v. Goldman · filed 2021-03-25(a)(7)

However, a defective complaint will not be dismissed where affidavits and other evidence amplify inartfully pleaded but potentially meritorious claims ( see AG Capital Funding Partners, L.P. v State St. Bank and Trust Co. , 5 NY3d 582, 591 [2005]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

On a CPLR 3211(a)(7) motion, evidence submitted in opposition may cure a deficiency in the pleadings.

Bchakjan v. City of New York · filed 2022-11-17(a)(7)

The evidence submitted by plaintiff in opposition to the City's motion may be considered to correct the deficiency in the pleadings regarding prior written notice ( see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]; Becker v City of New York , 131 AD2d 413, 415 [2d Dept 1987]).

Under CPLR 3211(a)(7), a motion relying on evidence outside the complaint must be denied unless the evidence establishes that a claimed material fact is false and no significant dispute remains.

808 Union St., LLC v. J. Lehman Park Slope, LLC · filed 2023-05-17(a)(7)

A motion to dismiss pursuant to CPLR 3211(a)(7) in which the movant relies upon evidence beyond the four corners of the complaint must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Guggenheimer v Ginzburg , 43 NY2d at 275).

Section 3211 does not permit dismissal for lack of prior written notice when establishing that ground requires proof outside the pleadings; the motion is treated as one for summary judgment.

Fatty v. City of New York · filed 2024-07-23(a)(7)

However, lack of prior written notice under Administrative Code § 7-201 is not a valid ground for a motion to dismiss pursuant to CPLR § 3211. Rather, a motion on that ground is in the nature of summary judgment, because the City must submit proof, as it did here, outside of the pleadings to establish that it did not receive any prior written notice of the allegedly defective condition (see e.g. Brill v City ofNew York, 2 NY3d 648 [2004]).

When a court considers evidence outside the pleadings on a motion under subsection (a)(7), it may dismiss if the alleged material facts are shown to be false and no significant dispute remains.

Occidental Fire & Cas. Co. of N. Carolina v. RJ 4th Ave LLC · filed 2025-05-08(a)(7)

Metropolitan has demonstrated that the material facts of ownership and nexus to the demolition and construction atthe project site adjacent to the insured premises as alleged ih the Complaint are not facts at all. Futhet, the documentary evidence submitted by plaintiff outside the complaint establishes that no significant dispute exists establishing that Metropolitan had any nexus to the demolition and construction at the project site.

A CPLR 3211 motion is not premature merely because discovery is incomplete when the claim fails as a matter of law.

East of Hudson Rail Frgt. Task Force, Inc. v. Port Auth. of N.Y. & N.J. · filed 2020-05-14

Order, Supreme Court, New York County (David B. Cohen, J.), entered November 30, 2018, which, insofar appealed from as limited by the briefs, granted defendant's motion to dismiss the first cause of action (breach of fiduciary duty) pursuant to CPLR 3211, unanimously affirmed, without costs. The motion court properly found, as a matter of law, that defendant did not owe a fiduciary duty to plaintiff. ... We have considered plaintiff's argument that defendant's motion was premature because discovery was incomplete, and find it unavailing.

Dismissal under CPLR 3211(a)(7) is premature when discovery may establish an obligation supporting the pleaded claim.

Skelly v. New York City Health & Hosps. Corp. · filed 2018-05-08(a)(7)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered December 19, 2016, which granted defendants' CPLR 3211 (a)(7) motion to dismiss plaintiff's complaint alleging violation of Labor Law § 741, unanimously reversed, on the law, without costs, and the motion denied. ... However, dismissal on this ground would be premature at this juncture. Even if it is true that the Department of Health and Mental Hygiene is responsible for testing the City's drinking water, such does not necessarily mean that defendants have no separate and independent obligation to do so. Discovery should be allowed to proceed on this point.

CPLR 3211(d) permits discovery before dismissal when facts needed to determine whether a claim can proceed remain unresolved.

Odan Labs. Ltd. v. Alkem Labs. Ltd. · filed 2020-06-04(d)

Accordingly, prior to dismissal of its breach of contract claim against Alkem, Odan is entitled to discovery from Alkem to determine the full circumstances surrounding the transaction and whether Alkem subsequently or de facto acquired Long (see CPLR 3211[d]; Curry v Hundreds of Hats, Inc. , 146 AD3d 593, 594 [1st Dept 2017]).

A party opposing dismissal as premature must show that additional discovery is necessary or submit material that cures the pleading deficiencies.

Kornfeld v. Zheng · filed 2020-07-02(d)

While plaintiff asserts that dismissal is premature, when opposing Carmel's motion, she did not make any additional submissions to cure the pleading deficiencies or to establish that additional discovery was necessary ( Sheila C. , 11 AD3d at 130; see CPLR 3211[d]).

Section 3211(d) permits denial of a motion to dismiss when facts needed to oppose it may exist and discovery is necessary to disclose them.

BL DOE 3 v. Female Academy of the Sacred Heart · filed 2021-11-19(d)

The court therefore properly denied that part of defendant's motion seeking dismissal of plaintiff's second cause of action against defendant under CPLR 3211 (a) (7) because plaintiff established that "facts [necessary for her to oppose the motion properly] may exist and that discovery is necessary for a full disclosure" ( Nice v Combustion Eng'g , 193 AD2d 1088, 1090 [4th Dept 1993]; see CPLR 3211 [d]; Cantor v Levine , 115 AD2d 453, 454 [2d Dept 1985]).

Section 3211(d) permits denial of a motion to dismiss as premature when discovery is needed.

DaCosta v. New York City Dept. of Bldgs. · filed 2022-03-22(d)

Defendant's motion to dismiss plaintiff's unlawful retaliation claim under Civil Service Law § 75-b is at best premature since discovery is clearly required under the circumstances ( see CPLR 3211[d]).

Section 3211(d) permits discovery before dismissal when the pleaded facts and favorable inferences warrant further factual development.

Groove Club, LLC v. Peterson · filed 2022-12-08(d)

Although defendant alleges that that no contract was ever agreed upon, given the facts of this case, in particular the allegation that defendant developed a virtually identical concept and shopped it to the History Channel apparently without plaintiff's knowledge, as well as the action's procedural posture and favorable inferences accorded pleadings at the motion to dismiss stage, plaintiff should be allowed to conduct discovery (CPLR 3211[d]; Patterson v Spartan Indus ., 33 NY2d 463, 466-467 [1974]).

A pre-answer motion to dismiss under CPLR 3211 is generally ill suited to resolving a fact-intensive veil-piercing claim before discovery.

Goodwill Toys MFG, Ltd. v. I-Star Entertainment, LLC · filed 2023-03-01(a)

Since veil-piercing is fact-laden, it is not well suited for resolution on a pre-answer, pre-discovery motion to dismiss pursuant to CPLR 3211 ( see Town-Line Car Wash, Inc., v Don's Kleen Mach. Kar Wash, Inc , 169 AD3d 1084, 1085).

CPLR 3211(a)(7) does not permit dismissal before an answer and discovery when a fact-intensive claim depends on information exclusively held by defendants.

Pierce v. Archer Daniels Midland, Co. · filed 2023-11-30(a)(7)

A fact-laden claim such as this, as to which corporation and/or to what extent each corporation had control of the accident site, its personnel and the instrumentality involved in the accident, is unsuited for resolution on a pre-answer, pre-discovery motion to dismiss, especially here, where the defendants are in exclusive possession of such information ( see Cortlandt St. Recovery Corp. v Bonderman , 31 NY3d 30, 47 [2018]; New York Mun. Power Agency v Town of Massena , 197 AD3d 83, 88 [3d Dept 2021]).

Section 3211(a)(1) and (a)(7) permit dismissal before further discovery when clear documentary evidence conclusively contradicts the complaint's allegations.

Carrington v. City of N.Y. Human Resources Admin. · filed 2024-12-04(a)(1) and (a)(7)

Under CPLR § 3211(a)(1) and (a)(7), further discovery is unwarranted when the allegations in the complaint are wholly contradicted by clear and unequivocal documentary evidence, as is the case here.

Section 3211(d) does not require denial of a dismissal motion as premature when undisputed documentary evidence establishes the relevant facts and the opposing party alleges no facts supporting its other theories of liability.

Jane Doe Three v. KIPP Academy Charter Sch. · filed 2025-02-04(d)

There is no basis to deny dismissal as premature pursuant to CPLR 3211(d). The facts regarding the corporate existence of the KIPP entity defendants are based on undisputed documentary evidence and plaintiffs have not alleged facts supporting their other various theories of liability ( see generally Yovich v Montefiore Nyack Hosp. , 212 AD3d 425, 426 [1st Dept 2023]).

A CPLR 3211(a)(7) motion based on an immunity defense is premature when resolving the defense requires a fact-intensive inquiry that cannot be completed before discovery.

Jackson v. BronxCare Health Sys. · filed 2025-03-27(a)(7)

While those assertions, if proven, might support defendant's immunity claim as to plaintiff's claim of inadequate monitoring and assistance by staff, defendant's motion to dismiss, based largely on the affidavit and affirmation of its employees, "placed plaintiff in the position of having to accept [defendant's] word [*2]on potentially dispositive issues" before completion of discovery ( Holder, 231 AD3d at 90 n 5). Since the issue of whether the immunity defense is applicable "requires a fact-intensive inquiry," it would be premature to resolve that issue at this juncture ( id at 88).

A CPLR 3211 dismissal motion is not premature merely because a party hopes discovery will reveal facts needed to oppose it.

Lefruy v. Weeks · filed 2025-08-15(a)(7)

Weeks' sole argument in opposition (Doc. No. 18 ¶ 8-9) that the dismissal motion is premature is without merit as the "mere hope that discovery may reveal facts essential to justify opposition does not warrant denial" of a motion under CPLR 3211 ( Vasquez v Kennedy , 221 AD3d 936, 939 [2d Dept 2023]; Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP , 191 AD3d 864, 867 [2d Dept 2021]; Karpovich v City of NY , 162 AD3d 996, 998 [2d Dept 2018]).

CPLR 3211 permits dismissal before discovery based on the business judgment rule when the complaint lacks sufficient allegations of director bad faith or self-interest.

Erie County Employees Retirement System v. Blitzer · filed 2014-11-20

In this particular case, pre-discovery dismissal based on the business judgment rule was appropriate since there are no allegations sufficient to demonstrate that the members of the board or the special committee did not act in good faith or were otherwise interested (see e.g. Kassover v Prism Venture Partners, LLC, 53 AD3d 444, 450 [1st Dept 2008]; cf. Ackerman v 305 E. 40th Owners Corp., 189 AD2d 665 [1st Dept 1993] [holding prediscovery dismissal based on the business judgment rule was inappropriate where the pleadings suggested that directors acted in bad faith]).

Section 3211(a)(1) requires conclusive documentary evidence; documents showing no ownership interest at formation do not establish that no interest arose later.

Gowen v. Helly Nahmad Gallery, Inc. · filed 2018-05-08(a)(1)

Defendants' use of documents indicating that Davide Nahmad was not an initial member of the Helly Nahmad Gallery fail to conclusively establish whether Davide Nahmad had any type of owner or membership interest in the Helly Nahmad Gallery after its formation. See Leon v. Martinez , 84 NY2d 83, 87-88 (1994) (noting that under CPLR 3211(a)(1) documentary evidence must be conclusive).

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.

Union St. Tower, LLC v. First Am. Tit. Co. · filed 2018-05-09(a)(1)

A motion made pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 87).

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

Soroush v. Citimortgage, Inc. · filed 2018-05-23(a)(1)

Applying the standards governing a motion to dismiss a complaint pursuant to CPLR 3211 ( see Sunset Café, Inc. v Mett's Surf & Sports Corp ., 103 AD3d at 708; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care , 63 AD3d at 704), the Supreme Court should have denied Citimortgage's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it on the ground that the evidence it submitted did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and did not utterly refute the factual allegations of the complaint and conclusively establish a defense to the claims as a matter of law ( see Gawrych v Astoria Fed. Sav. & Loan , 148 AD3d 681, 682; Mendelovitz v Cohen , 37 AD3d 670).

Section 3211 permits dismissal when the submitted agreements conclusively establish that the claimant has no cause of action.

Anonymous v. Anonymous · filed 2018-08-30

We agree with the motion court that the agreements do not conclusively establish that [*6]relator has no cause of action as to warrant dismissal on this motion pursuant to CPLR 3211 ( see Rovello v Orofino Realty Co. , 40 NY2d 633 [1976]).

A motion under CPLR 3211(a)(1) may be granted only when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

Elite Laser Hair, Inc. v. Perfect Body Image, LLC · filed 2018-12-12(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; see Attias v Costiera , 120 AD3d 1281, 1282; Rodolico v Rubin & Licatesi, P.C. , 114 AD3d 923, 924-925).

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

Meyer v. New York-Presbyterian Hosp. Queens · filed 2018-12-26(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the causes of action as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Granada Condominium III Assn. v Palomino , 78 AD3d 996 , 996).

Section 3211(a)(1) permits a court to consider documentary evidence on a dismissal motion when it conclusively establishes a defense as a matter of law.

Knox v. Aronson, Mayefsky & Sloan, LLP · filed 2018-12-27(a)(1)

Contrary to plaintiff's contention, the settlement is properly considered on this motion based on documentary evidence (CPLR 3211[a][1]) ( see Leon v Martinez , 84 NY2d 83, 88 [1994]), and it "conclusively establishes a defense to the asserted claims as a matter of law" ( see id. ).

A CPLR 3211(a)(1) motion cannot resolve factual issues that are not resolved by the submitted documentary evidence.

Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC · filed 2019-03-05(a)(1)

Supreme Court also appropriately recognized that the wrongful termination claim raises factual issues not resolved by the documentary evidence submitted by Lend Lease in support of its CPLR 3211(a)(1) motion.

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.

Hameroff v. Swaminathan · filed 2019-05-31(a)(1)

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

A lease may qualify as documentary evidence under CPLR 3211(a)(1), but it must conclusively refute the plaintiff’s allegations or establish a defense as a matter of law to support dismissal.

Scheer v. Elam Sand & Gravel Corp. · filed 2019-11-08(a)(1)

"Although a lease may constitute documentary evidence for purposes of CPLR 3211 (a) (1)," we conclude that the termination clause in the lease submitted by defendant in support of its motion failed to "utterly refute . . . plaintiff's allegations or conclusively establish a defense as a matter of law" ( Lots 4 Less Stores, [*2]Inc. v Integrated Props., Inc. , 152 AD3d 1181, 1182-1183 [4th Dept 2017] [internal quotation marks omitted]).

Under CPLR 3211(a)(1), redacted documents do not support dismissal when they fail to conclusively resolve the claim.

Frankel v. Board of Mgrs. of the Cent. Park W. Condominium · filed 2019-11-14(a)(1)

The court also correctly declined to dismiss the cause of action seeking a declaration that the results of the 2017 board of managers election are null and void, as the redacted documents, standing alone, do not conclusively resolve the cause of action (CPLR 3211[a][1]).

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

New York State Div. of Human Rights v. Town of Oyster Bay · filed 2019-11-20(a)(1)

We agree with the Supreme Court's determination to deny that branch of LIHP's motion which was pursuant to CPLR 3211(a)(1), as the documents submitted did not utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Leon v Martinez , 84 NY2d at 88).

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

Minchala v. 829 Jefferson, LLC · filed 2019-11-20(a)(1)

However, affidavits, deposition testimony, and letters are not considered documentary evidence within the intent of CPLR 3211(a)(1) ( see Rodolico v Rubin & Licatesi, P.C. , 114 AD3d at 925; Cives Corp. v George A. Fuller Co., Inc. , 97 AD3d at 714; Granada Condominium III Assn. v Palomino , 78 AD3d at 997; Fontanetta v John Doe 1 , 73 AD3d at 85-86).

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

Benjamin v. Yeroushalmi · filed 2019-12-04(a)(1)

In support of those branches of the motion, the Yeroushalmi defendants submitted emails, which are not considered "documentary evidence" under CPLR 3211(a)(1) ( see Kalaj v 21 Fountain Place, LLC , 169 AD3d 657, 658; Eisner v Cusumano Constr., Inc. , 132 AD3d 940, 942; Zellner v Odyl, LLC , 117 AD3d 1040, 1041; Cives Corp. v George A. Fuller Co., Inc. , 97 AD3d 713, 714).

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.

Pacific W., Inc. v. E & A Restoration, Inc. · filed 2019-12-11(a)(1)

To succeed on a motion to dismiss a complaint 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 ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88).

Under CPLR 3211(a)(1), emails and unsigned documents that are not essentially undeniable do not qualify as documentary evidence supporting dismissal.

S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc. · filed 2019-12-18(a)(1)

Here, the emails and the unsigned documents relied on by the Supreme Court to conclude that the LOI was an unenforceable agreement to agree were not essentially undeniable, and did not constitute documentary evidence ( see Kalaj v 21 Fountain Place, LLC , 169 AD3d 657, 658).

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

Rainey v. Bonanno · filed 2019-12-20(a)(1)

Contrary to defendant's contention, the documentary evidence that he submitted does not conclusively establish that he was not contractually obligated to keep the walkway clear of snow and ice.

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

Saddharma Cakra Buddhist Assn., Inc. v. Chen · filed 2020-01-08(a)(1)

Moreover, the documentary evidence submitted by the defendant failed to establish a defense to the action as a matter of law ( see Georgica Bldrs., [*2]Ltd. v 136 Bishops Lane, LLC , 175 AD3d 610, 611; Klamar v Marsans , 79 AD3d at 974).

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

Zegelstein v. Nanto MK Corp. · filed 2020-01-14(a)(1)

Plaintiff's January 5, 2015 email, which was attached to the complaint and upon which plaintiff relies, when read in its entirety, does not "conclusively establish[] a defense to the asserted claims as a matter of law" ( see CPLR 3211[a][1]).

Correspondence about whether a plaintiff fulfilled its contractual obligations can constitute documentary evidence under CPLR 3211(a)(1).

United Capital Real Estate Dev. Corp. v. Sahara US Corp. · filed 2020-01-21(a)(1)

Regardless, the correspondence between the parties regarding whether plaintiff had funded an escrow, provided draft documents and provided proof of funds, in this instance, constituted documentary evidence for purposes of CPLR 3211(a)(1) ( see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc ., 120 AD3d 431, 432 [1st Dept 2014]).

An affidavit with attached letters could not be used to obtain dismissal under CPLR 3211 (a) (1).

Fitzgerald Morris Baker Firth P.C. v. Mayor of the Vil. of Hoosick Falls · filed 2020-01-23(a)(1)

Supreme Court correctly determined that the affidavit, with attached letters, that defendants submitted could not be utilized on a motion seeking dismissal under CPLR 3211 (a) (1).

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

Jacobs v. Metropolitan Transp. Auth. · filed 2020-02-05(a)(1)

Assuming that the purchase of a monthly commutation ticket establishes a contractual relationship between the defendants and the plaintiffs ( see D'Angelo v Triborough Bridge & Tunnel Auth. , 106 AD2d 128, 129-131, affd 65 NY2d 714; Levine v Long Is. R. R. Co. , 38 AD2d 936, 938-939, affd 30 NY2d 907; W. R. Grace & Co. v Railway Express Agency , 9 AD2d 425, 429, affd 8 NY2d 103), the documentary evidence submitted by the defendants, in the form of sections of the passenger tariff in effect at all relevant times, conclusively established a defense as a matter of law to the allegations of breach of contract.

Under CPLR 3211(a)(1), exhibits offered to establish the truth of allegedly defamatory statements must utterly refute the plaintiff’s allegation of falsity to warrant dismissal.

Conklin v. Laxen · filed 2020-02-07(a)(1)

To the extent that Laxen and the court relied on CPLR 3211 (a) (1) in evaluating the exhibits attached to plaintiff's complaint, we agree with plaintiff that the court erred in relying on those exhibits to conclude that they established that Laxen's statements were true 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.

Leader v. Steinway, Inc. · filed 2020-02-19(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).

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

Binn v. Muchnick, Golieb & Golieb, P.C. · filed 2020-02-25(a)(1)

Those documents "conclusively establish[] a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]).

Under CPLR 3211(a)(1), statements gathered during an investigation and a non-harassment policy do not qualify as documentary evidence supporting dismissal.

Carr v. Wegmans Food Mkts., Inc. · filed 2020-04-02(a)(1)

As plaintiff argues, even sworn affidavits have been held inadequate to meet this statutory standard, and defendant's submissions here do not qualify as documentary evidence ( see Lopes v Bain , 82 AD3d 1553, 1554 [2011]; Crepin v Fogarty , 59 AD3d 837, 838 [2009]; see also John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 25-26). Accordingly, the complaint should not have been dismissed pursuant to CPLR 3211 (a) (1).

On a motion to dismiss under CPLR 3211(a), an affidavit and attached agreements do not justify dismissal when they fail to utterly refute the plaintiff's claim.

Homapour v. Harounian · filed 2020-04-02(a)

Their affidavit and the copies of the agreements attached thereto do not "utterly" refute plaintiffs' claim that they drafted the controlling operating agreements as to all of the Family LLCs ( see Goshen v Mut. Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; Greenapple v Capital One, N.A. , 92 AD3d 548, 550 [1st Dept 2012]).

CPLR 3211(a)(1) permits a defendant to rely on documentary evidence on a motion to dismiss when the documents’ authenticity is undisputed and their contents are essentially undeniable.

Lloyd's Syndicate 2987 v. Furman Kornfeld & Brennan, LLP · filed 2020-04-23(a)(1)

In support of their motion to dismiss, defendants properly relied on documentary evidence, including the challenged disclaimer letter and the relevant policy, since their authenticity is undisputed and their contents are "essentially undeniable" ( see DSA Realty Servs., LLC v Marcus & Millichap Real Estate Inc. Servs. of N.Y., Inc. , 128 AD3d 587 [1st Dept 2015]; see also Kaplan v Conway & Conway , 173 AD3d 452, 453 [1st Dept 2019]; CPLR 3211[a][1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes that a claim is barred by a contractual notice requirement.

Colonial Sur. Co. v. New York City Hous. Auth. · filed 2020-04-30(a)(1)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered August 27, 2018, which granted defendant New York City Housing Authority's (NYCHA's) CPLR 3211(a)(1) motion to dismiss the complaint, unanimously affirmed, without costs. In support of its motion, NYCHA submitted documentary evidence showing that plaintiff Colonial Surety Company failed to timely notify NYCHA of its equitable adjustment claim.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively refutes the pleading’s factual allegations; the pleading itself cannot serve that purpose.

Matter of Santander Consumer USA, Inc. v. Kobi Auto Collision & Paint Ctr., Inc. · filed 2020-05-07(a)(1)

With regard to petitioner's motion to dismiss the quantum meruit counterclaim on the ground that it is barred by documentary evidence (CPLR 3211 [a] [1]), such motion may only be granted where documentary evidence "utterly refutes [respondent]'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 83, 88 [1994]). Since the only documentary evidence relied upon by petitioner is the counterclaim itself, the motion to dismiss this counterclaim should have been denied. This counterclaim sufficiently pleads a cause of action for quantum meruit and, thus, petitioner cannot rely on that counterclaim to refute the factual allegations contained in the same counterclaim.

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

Array BioPharma, Inc. v. AB · filed 2020-06-11(a)(1)

Under CPLR 3211[a][1], dismissal is only warranted if the documentary evidence resolves all factual issues and disposes of plaintiff's claim as a matter of law ( Foster v Kovner , 44 AD3d 23, 28 [1st Dept 2007]). Defendants submitted only excerpts from the agreements related to the Merck collaboration. This limited submission was not adequate to demonstrate how the agreements were intended to work together, and whether Merck received any sublicensee rights outside the selumetinib sublicense agreement.

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.

Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc. · filed 2020-06-24(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Webster v Sherman , 165 AD3d 738, 740).

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.

Dedaj v. Berisha · filed 2020-07-15(a)(1)

On a motion to dismiss pursuant to CPLR 3211, the complaint is to be afforded a liberal construction and dismissal pursuant to CPLR 3211(a)(1) 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 ( see Urias v Daniel P. Buttafuoco & Assoc., PLLC , 120 AD3d 1339, 1341; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo , 113 AD3d 587, 589).

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

Bonavita v. Government Employees Ins. Co. · filed 2020-07-22(a)(1)

Here, the affidavits and letters submitted by GEICO in support of its motion did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) ( see County of Westchester v Unity Mech. Corp. , 165 AD3d at 885; Attias v Costiera , 120 AD3d 1281).

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

Palero Food Corp. v. Zucker · filed 2020-08-05(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see Golia v Vieira , 162 AD3d 865, 867; Sheridan v Town of Orangetown , 21 AD3d 365, 365).

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

Arnell Constr. Corp. v. New York City Sch. Constr. Auth. · filed 2020-08-12(a)(1)

Furthermore, the affidavit submitted by the defendant in support of that branch of its motion is not documentary evidence within the meaning of CPLR 3211(a)(1) ( see Granada Condominium III Assn. v Palomino , 78 AD3d 996, 997).

Under CPLR 3211(a)(1), prehospital care report summaries and computerized automated dispatch reports do not constitute documentary evidence supporting dismissal.

Watts v. City of New York · filed 2020-09-23(a)(1)

The prehospital care report summaries and computerized automated dispatch report submitted in support of the City defendants' motion did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) ( see Santaiti v Town of Ramapo , 162 AD3d at 926; Fontanetta v John Doe 1 , 73 AD3d 78, 87).

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.

Domitz v. City of Long Beach · filed 2020-10-14(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'" ( S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc. , 178 AD3d 977, 978, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Documentary evidence supports dismissal under CPLR 3211(a)(1) only if it conclusively establishes a basis for dismissal.

Matter of Daimler Trust v. R&W Auto Body, Inc. · filed 2020-10-29(a)(1)

Inasmuch as Catanese was the lessee, not the title owner, of the vehicle, and the business certificate did not cover the period when his authorization was given, that proof did not "conclusively establish[]" the validity of the lien so as to warrant dismissal of the petition ( Leon v Martinez , 84 NY2d 83, 88 [1994]; see Matter of Santander Consumer USA, Inc. v Kobi Auto Collision & Paint Ctr., Inc. , 183 AD3d 984, 987 [2020]).

Under CPLR 3211(a)(1), documentary evidence can support dismissal when it establishes lack of causation as a matter of law.

Gross v. Aronson, Mayefsky & Sloan, LLP · filed 2020-11-05(a)(1)

Defendant established lack of causation as a matter of law by submitting the matrimonial post-trial decision awarding plaintiff 50% of the value of the brokerage accounts at the time the matrimonial action was commenced (CPLR 3211[a][1]; Brooks v Levin , 21 AD3d 731, 734 [1st Dept 2005] lv denied 6 NY3d 713 [2006]).

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

Lessin v. Piliaskas · filed 2020-11-12(a)(1)

While the defendants additionally submitted certain email correspondence purportedly exchanged between Lessin and Bembe's accountant, these emails were not "documentary evidence" within the intendment of CPLR 3211(a)(1) ( see Members of Dekalb Ave. Condominium Assn. v Klein , 172 AD3d 1196).

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.

Siegler v. Lippe · filed 2020-12-02(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc. , 184 AD3d 803, 804).

Documentary evidence does not warrant dismissal under CPLR 3211(a)(1) unless it conclusively refutes the complaint's allegations.

Broecker v. Conklin Prop., LLC · filed 2020-12-02(a)(1)

Conklin alleged in the fourth-party complaint that the policy procured, which excluded coverage for bodily injury to contractors, subcontractors, and their workers, did not comport with Conklin's request, and the documentary evidence does not conclusively establish otherwise ( see Gibson & Cushman Contr., LLC v Cook Maran & Assoc., Inc. , 184 AD3d 755).

Under subsection (a)(1), affidavits do not qualify as documentary evidence for a motion to dismiss.

Ajaka v. Mount Sinai Hosp. · filed 2020-12-09(a)(1)

Here, the affidavits submitted by the defendants are not documentary evidence within the meaning of CPLR 3211(a)(1) and do not utterly refute the plaintiff's factual allegations ( see Hartnagel v FTW Contr. , 147 AD3d 819, 821).

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

Landmark Plaza Props. Corp. v. H2M Architects · filed 2020-12-16(a)(1)

In addition, the documentary evidence conclusively disproves the plaintiff's allegations that the defendants had additional duties with respect to the roof installation ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Mitkowski v Marceda , 133 AD3d 574, 575).

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

Rev 5, LLC v. Union Temple of Brooklyn · filed 2020-12-23(a)(1)

In order 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 AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. , 5 NY3d 582, 590-591; Leader v Steinway, Inc. , 180 AD3d 886; S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc. , 178 AD3d 977). The defendant failed to make such a showing.

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.

J.P. Morgan Mtge. Acquisition Corp. v. South Homes, Inc. · filed 2020-12-23(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 Wells Fargo Bank N.A. v E & G Dev. Corp. , 138 AD3d 986, 987).

Section 3211(a)(1) does not treat hearing transcripts, affirmations, or affidavits as documentary evidence supporting dismissal.

Bianco v. Law Offs. of Yuri Prakhin · filed 2020-12-23(a)(1)

Accordingly, the hearing transcripts, affirmation, and affidavit relied upon by the Kletzkin defendants and the Schneider defendants in support of their respective motions do not constitute documentary evidence for the purposes of CPLR 3211(a)(1).

Section 3211 does not permit dismissal based on a prior stipulation when documentary evidence fails to establish as a matter of law that the stipulation bars the claim.

Reichenbach v. Jacin Invs. Corp., N.V. · filed 2021-01-05

Given the procedural posture of the action, however, the motion court properly determined that the documentary evidence did not establish as a matter of law that the stipulation did not violate RSC 2520.13 ( see e.g. Jazilek v Abart Holdings, LLC , 72 AD3d 529, 532 [1st Dept 2010] ["it cannot be presumed that in so-ordering the stipulation, the Housing Court was making any finding that the stated monthly rent was the legal regulated rent"]).

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

Johnson v. Asberry · filed 2021-01-12(a)(1)

Affidavits are not documentary evidence and are not appropriate proof on a CPLR 3211(a)(1) motion to dismiss ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]; Williamson, Picket, Gross, Inc. v Hirschfeld , 92 AD2d 289, 290 [1st Dept 1983], appeal dismissed 60 NY2d 585 [1983]).

Under CPLR 3211(a)(1), a judicial record can qualify as documentary evidence sufficient to dismiss a complaint.

Zeppieri v. Vinson · filed 2021-01-21(a)(1)

Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with "the proper case" in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action ( Jenkins v Jenkins , 145 AD3d at 1234).

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.

Berkovits v. Berkovits · filed 2021-01-27(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 ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Leon v Martinez , 84 NY2d at 88).

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

McNulty v. Port Wash. Police Dist. · filed 2021-02-03(a)(1)

The Supreme Court properly granted PWPD's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it. 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 83, 88).

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

Lemiszko v. Mosovich 2014 Family Trust · filed 2021-02-05(a)(1)

Further, "[u]nder CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon , 84 NY2d at 88). Here, the court properly concluded that the incomplete contract submitted by defendant in support of its motion was insufficient to establish defendant's entitlement to dismissal of the cross claim against it.

Section 3211 does not warrant dismissal based on documentary evidence when that evidence fails to establish a dispositive defect in the claim.

21/23 Ave. B Realty LLC v. 21&23 Ave B, LLC · filed 2021-02-09(a)(1)

The court correctly declined to dismiss Icon's fourth through eleventh counterclaims arising from the right of first offer contained in the disputed 2017 amendment to the agreement between it and Ursino, since Ursino failed to demonstrate through documentary evidence that his handwritten modification was a material term that precluded a meeting of the minds (see Kalaj v 21 Fountain Place, LLC , 169 AD3d 657, 658 [2d Dept 2019]).

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

Underwood v. Urban Homesteading Assistance (U-HAB), Inc. · filed 2021-02-16(a)(1)

As for plaintiffs' allegation that UHAB-HDFC [*2]was unjustly enriched by its having sold the apartment at issue on the open market, UHAB submitted documentary evidence refuting that claim (see CPLR 3211[a][1]). The Nominee Agreement, pursuant to which the interest in plaintiffs' apartment building was sold to defendant B&N Housing LLC, states unequivocally that any profits from sales of any interest in the building belonged to B&N and not to UHAB-HDFC. This precludes any viable claim for unjust enrichment.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the complaint’s allegations about a defendant’s role in the premises.

Philanthrope v. Papa John's Pizza · filed 2021-02-18(a)(1)

In this premises slip-and-fall case, defendant Papa John"s USA, Inc. submitted documentary evidence (i.e., a lease, deed, franchise agreement, and other documents) on its unopposed motion to dismiss that demonstrates that it was not a party to the franchise arrangement, had no role therein, and that it was not a party to the lease agreement, which was executed by the franchisee and the owner of the commercial premises. That evidence conclusively refutes the allegations that it had any role in the ownership, control, or maintenance of the leased premises where plaintiff was allegedly injured ( see Gulf & W. Corp. v New York Times Co ., 81 AD2d 772, 773 [1st Dept 1981]).

Documentary evidence supports dismissal only when it conclusively establishes a defense; an ambiguity about the plaintiff’s claim requires denial of the motion.

Strong Real Estate, LLC v. 55 Town Line, LLC · filed 2021-03-03(a)(1)

Here, the documents submitted by 55 Town fail to conclusively establish that it was permitted to use easement A for the purpose of ingress and egress to Wainscott Hollow Road.

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

Engelman v. Rofe · filed 2021-03-04(a)(1)

While defendants submitted evidence that Rofe was not an employee, "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]).

Under CPLR 3211(a)(1), service records do not support dismissal when an affidavit is needed to establish that they are complete.

Rider v. Rainbow Mobile Home Park, LLP · filed 2021-03-19(a)(1)

Here, the only documents that arguably qualify as "documentary" within the meaning of CPLR 3211 (a) (1) are the service records. Those records refute plaintiff's allegations only if we accept them to be a complete record of all repairs made by defendant at the house; however, we cannot say whether the service records are complete without consulting the affidavit of defendant's service manager, which is not documentary evidence ( see Amsterdam Hospitality Group, LLC , 120 AD3d at 432). Thus, we conclude that the documents submitted in support of defendant's motion " 'failed to utterly refute . . . plaintiff's allegations or conclusively establish a defense as a matter of law' " ( Lots 4 Less Stores, Inc. , 152 AD3d at 1183).

Correspondence can support dismissal as documentary evidence when it utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

Atsco Footwear Holdings, LLC v. KBG, LLC · filed 2021-04-13(a)(1)

Further, such correspondence constitutes "documentary evidence" that "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 also Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 432-433 [1st Dept 2014]).

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

Hart 230, Inc. v. PennyMac Corp. · filed 2021-05-12(a)(1)

In support of its motion to dismiss the cross claim, PennyMac submitted, inter alia, the 2014 order discontinuing the foreclosure action, which utterly refuted the allegations set forth in the cross claim that the statute of limitations with respect to the subject debt had expired.

Under CPLR 3211(a)(1), change logs and emails do not qualify as documentary evidence for dismissal when they lack essentially undeniable facts.

Whitestone Constr. Corp. v. F.J. Sciame Constr. Co. Inc. · filed 2021-05-13(a)(1)

The change logs and emails submitted by defendant for the purpose of refuting plaintiff's allegations as to defendant's bad faith frustration of the contractual alternative dispute resolution procedures, however, do not qualify as documentary evidence properly considered on this motion to dismiss, because they do not contain facts that are essentially undeniable (CPLR 3211[a][1]; [*2] see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431 [1st Dept 2014]).

Under CPLR 3211(a)(1), documents that do not conclusively establish the facts supporting dismissal are insufficient to dismiss a claim.

Oliver v. Boone · filed 2021-05-13(a)(1)

Although it is clear that the original limited partners made capital contributions, the roster of limited partners has changed drastically during the partnership's existence, and none of the documents provided by defendants conclusively establish whether the incoming limited partners made any contributions to the partnership or whether they received any distribution of the profits.

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

Himmelstein, McConnell, Gribben,Donoghue & Joseph v. Bender · filed 2021-06-03(a)(1)

When, as here, a defendant moves for dismissal of a cause of action under CPLR 3211 (a) (1), their documentary evidence must “utterly refute[] the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

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

Schmidt-Sarosi v. Offices for Fertility & Reproductive Medicine, P.C. · filed 2021-06-08(a)(1)

On a CPLR 3211(a)(1) motion to dismiss based on documentary evidence, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( id. at 88). ... Defendants' documentary evidence, which consists only of the employment agreement , fails to conclusively refute plaintiff's allegation that the net fees were "earned" before any deductions were made ( see Kolchins v Evolution Mkts ., Inc. , 31 NY3d 100, 109 [2018]) .

Under CPLR 3211(a)(1), ambiguous documentary evidence does not conclusively refute a complaint’s allegations and warrant dismissal.

Shephard v. Friedlander · filed 2021-06-10(a)(1)

At this stage, our role is not to interpret the contract, but to determine whether defendants met their burden of proffering documentary evidence conclusively refuting plaintiff's allegations that Friedlander is personally liable [*3]under the contract. They did not.

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.

Modern Mktg. Concepts, Inc. v. GAF Materials LLC · filed 2021-06-10(a)(1)

A motion to dismiss based under CPLR 3211 (a) (1) may be granted "where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 152 [2002]; Adamkiewicz v Lansing , 288 AD2d 531, 532 [2001]).

Section 3211(a)(1) permits dismissal based on a written agreement only when its clear terms contradict the claim.

McQuade v. Aponte-Loss · filed 2021-06-10(a)(1)

Accordingly, "a court may dismiss . . . claims pursuant to CPLR 3211 (a) (1) when they are contradicted by the terms of 'a written agreement that is complete, clear and unambiguous on its face'" ( id. , quoting Thirty One Dev., LLC v Cohen , 104 AD3d 1195, 1196 [2013]). Contrary to defendants' contention, the terms of the purchase and sale agreement do not clearly entitle them to dismissal of the complaint at this pre-answer juncture.

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

Bernard v. Citibank, N.A. · filed 2021-06-16(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; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... Here, the undisputed facts asserted in the pleadings ( see generally Matter of Joshua AA. v Jessica BB. , 132 AD3d 1107, 1107) and the documentary submissions of the defendants demonstrated "a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d at 88; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326).

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

Matter of Mixon v. Wickett · filed 2021-07-16(a)(1)

In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [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 Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll. , 127 AD3d 865, 866-867 [2d Dept 2015]).

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

Harounian v. Harounian · filed 2021-10-13(a)(1)

"To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" ( Teitler v Pollack & Sons , 288 AD2d 302, 302; see Leon v Martinez , 84 NY2d 83, 87-88). Here, the United LLCs' operating agreements conclusively establish that Jacob is not a member of the United LLCs.

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

Bath & Twenty, LLC v. Federal Sav. Bank · filed 2021-10-20(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'" ( Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 599, quoting Gould v Decolator , 121 AD3d 845, 847).

Under CPLR 3211(a)(1), documentary evidence that utterly refutes the complaint's allegations supports dismissal.

Ruiz v. 829 Realty LLC · filed 2021-10-26(a)(1)

Contrary to defendant/third-party plaintiff 829 Realty, LLC's contentions, the documentary evidence submitted by Acceptance Indemnity Insurance Co. (Acceptance), 829 Realty's insurer, utterly refuted 829 Realty's allegations that disclaimer of coverage in the main personal injury action was improper ( see generally CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; Atlantic Mut. Ins. Co. v Terk Tech. Corp. , 309 AD2d 22, 29 [1st Dept 2003]).

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

Jennings v. Silfen · filed 2021-10-28(a)(1)

The documentary evidence conclusively establishes a defense to the complaint ( see CPLR 3211[a][1]; Leon v Martinez , 84 NY2d 83, 88 [1994]).

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

Hogue v. Village of Dering Harbor · filed 2021-11-17(a)(1)

"To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" ( Teitler v Pollack & Sons , 288 AD2d 302, 302; see Leon v Martinez , 84 NY2d at 87-88; B & A Realty Mgt., LLC v Gloria , 192 AD3d at 853). ... Moreover, the documentary evidence resolved all factual issues as a matter of law in favor of the defendants.

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

Vergara v. Mission Capital Advisors, LLC · filed 2021-12-07(a)(1)

Defendants' documentary evidence does not conclusively establish a defense to the claims of breach of contract and violation of Labor Law § 191 (CPLR 3211[a][1]; see 150 Broadway N.Y. Assoc., L.P. v Bodner , 14 AD3d 1, 5 [1st Dept 2004]).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the plaintiff's factual allegations and conclusively establish a defense; an affidavit is not documentary evidence.

Broderick v. Amber Ct. Assisted Living · filed 2021-12-15(a)(1)

A motion to dismiss 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). The affidavit on which the defendants relied did not constitute documentary evidence for purposes of CPLR 3211(a)(1), and did not conclusively establish a defense as a matter of law ( see Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328; Ajaka v Mount Sinai Hosp. , 189 AD3d 963, 965).

Under CPLR 3211(a)(1), documentary evidence must conclusively establish a basis for dismissal at the pre-answer stage.

Colon v. 251 Lexington I LLC · filed 2021-12-21(a)(1)

Defendant Y Properties failed to submit documentary evidence sufficient to conclusively establish that it is the alter ego of plaintiff's employer, nonparty Yeshiva University, at this pre-answer stage ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651 [1st Dept 2011]; CPLR 3211[a][1]).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes a claim, even if the claim is adequately pleaded.

Hartshorne v. Roman Catholic Diocese of Albany, N.Y. · filed 2021-12-23(a)(1)

As a result, even if a claim is adequately pleaded for purposes of CPLR 3211 (a) (7), it will be dismissed under CPLR 3211 (a) (1) if it is utterly refuted by documentary evidence such as "the terms of a written agreement that is complete, clear and unambiguous [*3]on its face" ( McQuade v Aponte-Loss , 195 AD3d at 1220; see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d 169, 175 [2021]; Shephard v Friedlander , 195 AD3d at 1193).

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

Disbrow v. Normandie Condominium · filed 2022-01-11(a)(1)

Jacobi's affidavit does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Johnson v Asberry , 190 AD3d 491 [1st Dept 2021]).

Under CPLR 3211(a)(1), documentary evidence does not support dismissal unless it flatly contradicts the complaint’s allegations, utterly refutes them, or conclusively establishes a defense as a matter of law.

Ostojic v. Life Med. Tech., Inc. · filed 2022-01-18(a)(1)

The documentary evidence does not flatly contradict [*2]those allegations, utterly refute them, or conclusively establish a defense as a matter of law (CPLR 3211[a][1]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Biondi v Beekman Hill House Apt. Corp. , 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]).

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.

Gruber v. Donaldsons, Inc. · filed 2022-01-26(a)(1)

"Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1327-1328; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Under CPLR 3211(a)(1), a retainer agreement supports dismissal of a legal malpractice claim only if it conclusively resolves the relevant scope of representation.

Davis v. Farrell Fritz, P.C. · filed 2022-01-26(a)(1)

However, the third cause of action was not subject to dismissal pursuant to CPLR 3211(a)(1). ... The subject retainer, standing alone, failed to resolve conclusively all questions of fact regarding the scope of the CMM defendants' representation as to the subject matter of the third cause of action ( see Cali v Maio , 189 AD3d 1337, 1338; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d at 39).

Documentary evidence warrants dismissal under CPLR 3211(a)(1) only if it conclusively establishes the asserted defense as a matter of law.

Newport E. Inc. v. Sviba Floral Decorators, Inc. · filed 2022-02-08(a)(1)

Defendants' documentary submissions do not conclusively establish that he was acting on behalf of a disclosed principal as a matter of law ( see Leon v Martinez , 84 NY2d 83, 88 [1994]).

Under CPLR 3211(a)(1), an ambiguous release does not support dismissal, and its meaning should not be resolved on the motion.

Apollo Mgt., Inc. v. Cernich · filed 2022-02-15(a)(1)

Accordingly, the scope of the release language with respect to Cernich and Tseng was ambiguous, and Supreme Court should have simply denied the motion to dismiss without determining the meaning of the release language as a matter of law.

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

Oparaji v. ABN Amro Mtge. Group, Inc. · filed 2022-02-16(a)(1)

When a defendant moves pursuant CPLR 3211(a)(1) to dismiss on the ground that a cause of action is barred by documentary evidence, the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d at 175; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Hart 230, Inc. v PennyMac Corp. , 194 AD3d 789, 790).

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

Shmaltz Brewing Co., LLC v. Dog Cart Mgt. LLC · filed 2022-02-17(a)(1)

In the absence of documentary evidence conclusively establishing that performance under the contract by Dog Cart was impossible as a consequence of the shutdown of businesses, dismissal of the breach of contract claim based upon the impossibility defense is not warranted.

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

Meyers v. Becker & Poliakoff, LLP · filed 2022-02-24(a)(1)

Therefore, at this stage, dismissal was not warranted under CPLR 3211(a)(7), or under CPLR 3211(a)(1), as defendant failed to provide documentary evidence that "conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 88 [1994]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431, 432-433 [1st Dept 2014]).

Country reports on human rights practices do not qualify as documentary evidence under CPLR 3211(a)(1).

Shanghai Yongrun Inv. Mgt. Co., Ltd v. Xu · filed 2022-03-10(a)(1)

The Country Reports do not constitute "documentary evidence" under CPLR 3211(a)(1) ( see Fontanetta v John Doe 1 , 73 AD3d 78, 86, 87 [2d Dept 2010]; see also Armadillo Distrib. Enters., Inc. v Hai Yun Musical Instruments Manufacture Co. , 2014 WL 2815943, *4-6, 2014 US Dist LEXIS 85015, *10-16 [MD Fla 2014]; Palacios v The Coca-Cola Co. , 757 F Supp 2d 347, 359 [SD NY 2010], affd 499 Fed Appx 54 [2d Cir 2012]).

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

National Air Cargo, Inc. v. Jenner & Block, LLP · filed 2022-03-18(a)(1)

In appeal No. 2, we conclude that the court properly dismissed on the ground of documentary evidence the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC ( see CPLR 3211 [a] [1]). A motion to dismiss a complaint based 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 [2002]).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when it does not utterly refute a pleaded allegation.

Stile v. C-Air Customhouse Brokers-Forwards, Inc. · filed 2022-04-05(a)(1)

The documentary evidence submitted by defendants did not utterly refute this allegation.

An insurance policy qualifies as documentary evidence on a motion to dismiss under CPLR 3211(a)(1).

Consolidated Rest. Operations, Inc. v. Westport Ins. Corp. · filed 2022-04-07(a)(1)

As an initial matter, the insurance policy qualifies as "documentary evidence" under CPLR 3211(a)(1) ( Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co ., 155 AD3d 800, 802 [2d Dept 2017]).

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.

Delric Constr. Co., Inc. v. New York City Sch. Constr. Auth. · filed 2022-04-13(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" ( Leader v Steinway, Inc. , 180 AD3d 886, 887). ... Thus, the materials submitted by the defendant did not warrant dismissal under CPLR 3211(a)(1) ( cf. Arnell Constr. Corp. v New York City Sch. Constr. Auth. , 144 AD3d at 716-717).

CPLR 3211(a)(1) does not support dismissal when the documents submitted with the motion do not utterly refute the complaint’s allegations.

Gardner v. Virtuoso Ltd · filed 2022-04-19(a)(1)

Further, the emails submitted by defendants in support of their motion do not utterly refute the complaint's allegations that the February 2019 postings regarding Heritage and Revealed were defamatory ( 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 conclusively establishes a defense to the claims.

3502 Partners LLC v. Great Am. Ins. Co. of N.Y. · filed 2022-04-21(a)(1)

The documentary evidence conclusively establishes a defense to plaintiff's claims (CPLR 3211[a][1]; Leon v Martinez, 84 NY2d 83, 87—88 [1994]).

CPLR 3211(a)(1) requires documentary evidence that utterly refutes the complaint’s factual allegations and conclusively establishes a defense before a court may dismiss the complaint.

Davis v. Evangelical Lutheran Church In Am. · filed 2022-04-29(a)(1)

In order to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant must proffer documentary evidence that "utterly refute[s]" the factual allegations in the complaint, "conclusively establishing a defense as a matter of law" ( Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d 169, 175 [2021], rearg denied 37 NY3d 1020 [2021] [internal quotation marks omitted]). ... Here, the documentary evidence submitted by defendant failed to utterly refute the factual allegations in the complaint, and we therefore conclude that the court properly denied the motion.

Section 3211(a)(1) permits email correspondence, in a proper case, to suffice as documentary evidence supporting dismissal.

Cohen v. Getzel · filed 2022-05-19(a)(1)

However, plaintiff's affidavit in opposition to defendants' motion to dismiss never refuted the relevant portion of defendants' supporting affidavit and the critical May 2, 2017 email, wherein plaintiff was advised that defendants credited this de minimis penalty against plaintiff's account for fees he owed defendants ( see Art & Fashion Group Corp. v Cyclops Prod., Inc. , 120 AD3d 436, 438 [1st Dept 2014]["Email correspondence can, in a proper case, suffice as documentary evidence for purposes of CPLR 3211 [a] [1]"]).

Section 3211(a)(1) permits dismissal of contract claims when documentary evidence, including emails, shows that the parties made no enforceable agreement.

Odonata Ltd. v. Baja 137 LLC · filed 2022-06-28(a)(1)

The documentary evidence, including email correspondence, shows that there was no valid and enforceable agreement between the parties ( see CPLR 3211[a][1]; Kolchins v Evolution Mkts., Inc. , 128 AD3d 47, 58-59 [1st Dept 2015], affd 31 NY3d 100 [2018]).

Under CPLR 3211(a)(1), evidence supporting dismissal must qualify as documentary evidence and conclusively establish a defense by utterly refuting the complaint’s factual allegations.

Law Offs. of Harry J. Binder & Charles E. Binder, P.C. v. Fraga · filed 2022-07-06(a)(1)

Here, the evidence submitted by Fraga in support of her motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and, in any event, failed to utterly refute the plaintiff's allegations or conclusively establish a defense as a matter of law ( see Lewis & Murphy Realty, Inc. v Colletti , 187 AD3d at 733; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co. , 127 AD3d at 851).