N.Y. C.P.L.R. § 3211

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

Chen v. Romona Keveza Collection LLC · filed 2022-07-26(a)(1)

The complaint alleged that Kozlovska furnished services to all defendants, and the documentary evidence submitted by defendants did not conclusively refute this allegation. Supreme Court therefore [*6]erred in dismissing Kozlovska's claims against all defendants.

Under CPLR 3211(a)(1), an affidavit is not documentary evidence supporting dismissal.

Koike Aronson, Inc. v. Bearing Distribs., Inc. · filed 2022-08-04(a)(1)

In any event, the parties' purported course of dealing is reflected only in a self-serving affidavit from defendant's employee, and it well established that affidavits do "not constitute documentary evidence within the meaning of CPLR 3211 (a) (1)" ( Attias v Costiera , 120 AD3d 1281, 1283 [2d Dept 2014]; see Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1563 [4th Dept 2021]; Phillips v Taco Bell Corp. , 152 AD3d 806, 807 [2d Dept 2017]).

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

Rogoff v. Long Is. Univ. · filed 2022-08-17(a)(1)

Moreover, although the defendant also sought dismissal pursuant to CPLR 3211(a)(1), it failed to submit documentary evidence which "utterly refuted 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).

Allegations survive a motion to dismiss under CPLR 3211(a)(1) when documentary evidence does not conclusively refute them.

Cordaro v. AdvantageCare Physicians, P.C. · filed 2022-09-27(a)(1)

These allegations, which are not conclusively refuted by the documentary evidence, are sufficient to survive a motion to dismiss.

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

Dragonetti Bros. Landscaping Nursery & Florist, Inc. v. Verizon N.Y., Inc. · filed 2022-09-27(a)(1)

Similarly, the public works contracts utterly refute plaintiff's contention that defendant was required to deem its work necessary ( see CPLR 3211[a][1]).

CPLR 3211(a)(1) does not permit dismissal based on documentary evidence when the contract terms leave a relevant ambiguity.

Tantallon Austin Hotel, LLC v. Wilmington Trust, N.A. · filed 2022-10-13(a)(1)

At most, the terms of the loan agreement create an ambiguity as to defendants' entitlement to a liquidation fee that is not subject to resolution on a CPLR 3211(a)(1) motion ( see e.g. Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. 20 NY3d 59, 64 [2012]).

Under CPLR 3211(a)(1), a managing agent’s affidavit that is not conclusive documentary evidence does not establish a defense as a matter of law.

Manglani v. City of New York · filed 2022-10-20(a)(1)

The affidavit of defendant's managing agent did not establish a defense as a matter of law because it was not conclusive "documentary evidence" within the meaning of CPLR 3211 (a) (1) ( see Disbrow v Normandie Condominium, 201 AD3d 462 [1st Dept 2022]; Flowers v 73rd Townhouse LLC , 99 AD3d 431, 431 [1st Dept 2012]).

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

Matter of Gedney Assn., Inc. v. Common Council of the City of White Plains · filed 2022-10-26(a)(1)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be 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 NY , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88; Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d 714; Bonavita v Government Empls. Ins. Co. , 185 AD3d 892).

CPLR 3211(a)(1) permits dismissal when documentary evidence definitively disproves the claim.

Gemeaux Ltd. v. William Doyle Galleries Inc. · filed 2022-11-01(a)(1)

Defendant established its entitlement to dismissal of the complaint because it presented documents, including a Surrogate Court order and so-ordered stipulation, definitively disproving the claim (CPLR 3211[a][1]; see Blonder & Co., Inc. v Citibank, N.A. , 28 AD3d 180, 182 [1st Dept 2006]).

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

Piroozian v. Homapour · filed 2022-11-02(a)(1)

Accordingly, the Supreme Court correctly granted Homapour's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, as Homapour's evidence conclusively established a defense as a matter of law, and demonstrated that Piroozian does not have a cause of action for specific performance ( see generally Leon v Martinez , 84 NY2d at 88).

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.

Dutra v. Sunday Riley Modern Skincare, LLC · filed 2022-11-02(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" ( Mendelovitz v Cohen , 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Under CPLR 3211(a)(1), a legal malpractice defendant seeking dismissal must provide documentary evidence conclusively showing that its representation did not cover the alleged malpractice.

Zhang v. Lau · filed 2022-11-09(a)(1)

"Rather, a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice" ( Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d at 39 [emphasis omitted]). Here, the Lau defendants failed to submit such documentary evidence.

A legal malpractice defendant seeking dismissal under CPLR 3211(a)(1) must provide documentary evidence conclusively establishing that its representation did not cover the alleged malpractice.

Lin v. Lau · filed 2022-11-09(a)(1)

"Rather, a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice" ( Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d at 39 [emphasis omitted]). Here, the Lau defendants failed to submit such documentary evidence.

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

Farage v. Associated Ins. Mgt. Corp. · filed 2022-11-10(a)(1)

The Tower defendants conclusively established a defense to the asserted claims as a matter of law by submitting documentary evidence that "the [subject insurance] policy contains a two-year limitations period and that plaintiffs' action was commenced after the expiration of that period" ( Beekman Regent Condominium Assn. v Greater N.Y. Mut. Ins. Co. , 45 AD3d 311, 311 [1st Dept 2007]).

Under CPLR 3211(a)(1), an affidavit is insufficient documentary evidence to support a motion to dismiss.

Bailey v. Gabrielli Truck Leasing LLC · filed 2022-11-29(a)(1)

Rotella's affidavit is not sufficient documentary evidence to support the motion to dismiss under CPLR 3211(a)(1) ( see Bou v Llamoza , 173 AD3d 575, 575 [1st Dept 2019]).

On a CPLR 3211(a)(1) motion, offering documents are irrefutable evidence of what they say, regardless of contrary allegations in the complaint.

Schwartz v. Genfit, S.A. · filed 2022-12-06(a)(1)

In evaluating this pleading motion, the offering documents are irrefutable documentary evidence of what they say, regardless of the allegations in the complaint ( see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co ., 5 NY3d 582 [2005]; Prudential Bache Metal Co. v Binder , 121 AD2d 923, 926 [1st Dept 1986]).

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

4720 Third Ave. Hous. LLC v. CA Ventures LLC · filed 2022-12-06(a)(1)

The documentary evidence also defeats the promissory estoppel cause of action by refuting the allegations that defendants breached a promise to provide those funds and that plaintiffs reasonably relied on that promise (CPLR 3211[a][1]; see Binn , 180 AD3dat 599).

Under subdivision (a)(1), documentary submissions must utterly refute the relevant allegations to warrant dismissal of a sufficiently pleaded claim.

Kaufman v. Boies Schiller Flexner, LLP · filed 2022-12-06(a)(1)

The complaint sufficiently alleged that BSF overbilled or billed for unnecessary expenses associated with attorneys not admitted to practice law in, or based out of, New York, and the documentary submissions do not utterly refute those allegations ( e.g. Ullmann-Schneider v Lacher & Lovell-Taylor, P.C. , 121 AD3d 415, 416 [1st Dept 2014]; Goldfarb v Hoffman , 139 AD3d 474, 475 [1st Dept 2016]; Cascardo v Dratel , 171 AD3d 561, 562 [1st Dept 2019]; see CPLR 3211[a][1], [7]).

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.

Redwood Prop. Holdings, LLC v. Christopher · filed 2022-12-07(a)(1)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Leon v Martinez , 84 NY2d at 88).

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

Federal Ins. Co. v. Lester Schwab Katz & Dwyer, LLP · filed 2022-12-15(a)(1)

The causes of action for fraud and negligent misrepresentation, however, should have been dismissed pursuant to CPLR 3211(a)(1). ... The theory that LKSD misrepresented or failed to disclose the existence of the conflict is conclusively refuted by documentary evidence, specifically, an April 16, 2013 email from LSKD to, inter alia, the claims adjuster who retained it, plainly stating: "As discussed, we will accept this new assignment with the understanding that we will not assert cross claims against the City of New York. Our firm represents the City of New York in other matters and we are conflicted from asserting claims against them."

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

Giray v. Ulukaya · filed 2023-01-10(a)(1)

However, defendant's documentary evidence utterly refutes those allegations, and therefore his motion to dismiss the second amended complaint was properly granted ( see generally e.g. Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; Leon v Martinez , 84 NY2d 83, 87-88 [1994]; VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC , 171 AD3d 189, 193 [2019]; see also Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc. , 115 AD3d 128, 134-135 [1st Dept 2014]).

An affidavit does not qualify as documentary evidence supporting dismissal under CPLR 3211(a)(1).

Davis v. Henry · filed 2023-01-11(a)(1)

Here, the affidavit submitted by Pelican in support of its motion did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) ( see Bonavita v Government Empls. Ins. Co. , 185 AD3d at 894; Porat v Rybina , 177 AD3d at 633).

Section 3211(a)(1) permits dismissal only when documentary evidence conclusively defeats the plaintiff’s allegations; a letter describing the location of documents does not qualify as documentary evidence.

Yan Ping Xu v. Van Zwienen · filed 2023-01-25(a)(1)

Under CPLR 3211(a)(1), a dismissal is warranted only if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d 83, 88). ... However, the subject letter does not constitute "documentary evidence" ( Philips v Taco Bell Corp. , 152 AD3d at 807).

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

Needham & Co., LLC v. UPHealth Holdings, Inc. · filed 2023-01-26(a)(1)

Plaintiff failed to state a claim for breach of an agreement to indemnify and reimburse attorney's fees, as the documentary evidence — that is, the agreement itself —conclusively establishes a defense to that claim (CPLR 3211[a][1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence contradicts the allegations of a cause of action.

Tycoon Constr. Corp. v. New York City Hous. Auth. · filed 2023-02-16(a)(1)

NYCHA was entitled to dismissal of the cause of action for wrongful termination of contract, since the documentary evidence contradicts the allegations of that cause of action. The parties' agreement contained an unconditional termination clause giving NYCHA the absolute, unqualified right to terminate the agreement without court inquiry as to whether the termination was driven by an ulterior motive (CPLR 3211[a][1]; see Big Apple Car v City of New York , 204 AD2d 109, 111 [1st Dept 1994]).

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

Alleyne v. Rutland Dev. Group, Inc. · filed 2023-02-22(a)(1)

A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes [a] 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).

Investigative and remedial reports are not documentary evidence that supports dismissal under CPLR 3211(a)(1).

State of New York v. Alfa Laval Inc. · filed 2023-02-23(a)(1)

Furthermore, as the investigative and remedial reports submitted here are not "documentary evidence" within the meaning of CPLR 3211 (a) (1), Supreme Court should not have relied upon them to dismiss the complaint ( see Shanghai Yongrun Inv. Mgt. Co., Ltd v Maodong Xu , 203 AD3d 495, 495-496 [1st Dept 2022]; Fontanetta v John Doe 1 , 73 AD3d 78, 86 [2d Dept 2010]; Webster v State of New York , 2003 NY Slip Op 50590[U], *4-5 [Ct Cl 2003]).

CPLR 3211(a)(1) requires documentary evidence that resolves factual issues as a matter of law and conclusively disproves a material allegation.

Matter of Kogut v. Village of Chestnut Ridge · filed 2023-03-15(a)(1)

Additionally, the evidence submitted by the Village in support of the motion either was not documentary evidence within the meaning of CPLR 3211(a)(1), did not resolve all factual issues as a matter of law, or did not conclusively establish that a material fact as claimed by the petitioners was not a fact at all and that no significant dispute exists regarding it ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275; Hogue v Village of Dering Harbor , 199 AD3d 900, 902; Brannigan v Christie Overhead Door , 149 AD3d 892, 893).

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.

Cassagnol v. Village of Hempstead · filed 2023-03-15(a)(1)

Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Vertical Progression, Inc. v Canyon Johnson Urban Funds , 126 AD3d 784, 786 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 316).

Under CPLR 3211(a)(1), documentary evidence must conclusively resolve the complaint's allegations to support dismissal; an affidavit consisting mainly of legal conclusions and denials is insufficient.

J.D. v. Archdiocese of N.Y. · filed 2023-03-23(a)(1)

Although the deeds for the property upon which defendant Fordham Preparatory School is located and the Certificates of Incorporation for defendant USA Northeast Province of The Society Of Jesus constitute documentary evidence for the purposes of a CPLR 3211(a)(1) inquiry ( see generally Yoshiharu Igarashi v Shohaku Higashi , 289 AD2d 128 [1st Dept 2001]), they do not conclusively resolve the allegations in the complaint that plaintiff's alleged abuser, Father Eugene O'Brien, was an agent of the Archdiocese, that the Archdiocese exercised supervision and control over Fr. O'Brien's appointment or employ, and that there were special relationships between plaintiff, the Archdiocese, and Fr. O'Brien ( see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc ., 10 AD3d 267 [1st Dept 2004]). The affidavit of the Associate General Counsel for the Archdiocese does not constitute sufficient documentary evidence for the purpose of a pre-answer CPLR 3211(a)(1) motion ( see Johnson v Asberry , 190 AD3d 491 [1st Dept 2021]; Flowers v 73rd Townhouse LLC, 99 AD3d 431 [1st Dept 2012]). In any event, the affidavit consists mainly of legal conclusions and denials.

Under CPLR 3211(a)(1), a retainer agreement with a law firm does not warrant dismissal against an individual attorney unless it conclusively disproves an attorney-client relationship with that attorney.

Buchanan v. Law Offs. of Sheldon E. Green, P.C. · filed 2023-04-19(a)(1)

Contrary to Ostrov-Ronai's contention, her submission of a document which she characterized as a retainer agreement between the plaintiffs and the Law Offices failed to conclusively establish that no attorney-client relationship existed between her and the plaintiffs ( see id. § 3211[a][1]), and failed to demonstrate conclusively that a material fact as claimed by the plaintiffs "is not a fact at all" ( Guggenheimer v Ginzburg , 43 NY2d at 275).

CPLR 3211(a)(1) requires documentary evidence that conclusively refutes a complaint’s allegation to support dismissal on that ground.

Upfront Megatainment, Inc. v. Thiam · filed 2023-04-25(a)(1)

Further, defendant failed to submit any documentary evidence that conclusively refutes the allegation in the amended complaint that BMG is a "'major' record label" (CPLR 3211[a][1]; Leon , 84 NY2d at 87).

An ambiguous agreement cannot support dismissal under CPLR 3211(a)(1) because its meaning must be resolved by the trier of fact.

C&L Funding Co., LLC v. Intercounty Paving Assoc., LLC · filed 2023-04-26(a)(1)

Since the subordination agreement was ambiguous, neither dismissal under CPLR 3211(a)(1) nor summary judgment was appropriate, as "[r]esolution of the ambiguity is for the trier of fact" ( Nappy v Nappy , 40 AD3d at 826; see Arnell Constr. Corp. v New York City Sch. Constr. Auth ., 144 AD3d at 716).

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

Bedford-Carp Constr., Inc. v. Brooklyn Union Gas Co. · filed 2023-04-26(a)(1)

"A motion to dismiss [a cause of action] on the ground that the [cause of] action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077; see [*2]Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Section 3211(a)(1) does not permit dismissal based on a deed whose ambiguous language does not conclusively establish the asserted title.

Panarese v. Claudio · filed 2023-05-03(a)(1)

Here, however, the language of the 1954 deed is "ambiguous such that it is susceptible of more than one interpretation" ( Deckoff v W. Manning Family L.P. , 193 AD3d at 814 [internal quotation marks [*2]omitted]; see Hartmann v Harris , 136 AD3d 977, 979), thus precluding dismissal pursuant to CPLR 3211(a)(1).

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

ONH 14 53rd ST, LLC v. TPG RE Fin. 2, Ltd. · filed 2023-05-04(a)(1)

"A motion to dismiss a complaint based upon documentary evidence under CPLR 3211 (a) (1) may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law"" ( Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC , 152 AD3d 478, 479 [2d Dept 2017] [citations omitted]). ... Here, the court finds that TPG is entitled to dismissal of the complaint based on the clear language of the LPA.

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

J.A.F. v. Roman Catholic Archdiocese of N.Y. · filed 2023-05-09(a)(1)

In consonance with this Court's decision in J.D. v Archdiocese of N.Y ., 214AD3d 216 [1st Dept 2023]), we determine that the documentary evidence submitted by the Archdiocese in support of its CPLR 3211(a)(1) motion to dismiss the complaint against it failed to "utterly refute" the allegations in the complaint that plaintiff's abusers, Marist Brother Timothy Brady and Father Bernard J. Lynch, were agents of the Archdiocese, that the Archdiocese exercised supervision and control over their appointment or employ, and that a special relationship existed between plaintiff, the Archdiocese, and the other defendants ( see id. ; see generally Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326-327 [2002]).

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

Kralik v. Marai · filed 2023-05-11(a)(1)

Even if defendant's jurisdictional defenses were waived, the documentary evidence utterly refuted plaintiff's allegations that defendant failed to adequately apprise him of the deficiencies of his underlying claims before commencing the arbitration proceeding ( see CPLR 3211[a][1]; Seaman v Schulte Roth & Zabel LLP , 176 AD3d 538, 538-539 [1st Dept 2019]).

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

Sabharwal v. Hyundai Mar. & Fire Ins. Co., Ltd. · filed 2023-05-17(a)(1)

Since the defendant's evidentiary submissions failed to utterly refute the plaintiff's allegation that he had an insurable interest in the property at the time of the loss, and also failed to establish that the plaintiff did not have a cause of action to recover damages for breach of contract, the Supreme Court should have denied the defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

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

Triad 11 E., LLC v. Midoriya, Inc. · filed 2023-05-18(a)(1)

The lease and the affidavit, however, are insufficient to conclusively establish a defense based on documentary evidence, as Administrative Code § 22-1005 does not apply to commercial tenants, but only to personal guarantors. Thus, defendant tenant has raised no defense at all to the action (CPLR 3211[a][1]; see Leon v Martinez , 84 NY2d 83, 87 [1994]).

Emails may be considered documentary evidence on a motion to dismiss when they meet the essentially undeniable test and flatly refute an allegation.

Harbinger Capital Partners II, LP v. Apollo Global Mgt., LLC · filed 2023-05-23(a)(1)

The emails here pass the test inasmuch as they flatly refute plaintiffs' allegation that they had no reason to believe they were defrauded by the Apollo defendants with regard to the OOBR interference issue until late 2015.

Under CPLR 3211(a)(1), emails may qualify as documentary evidence, but they must utterly refute the plaintiff's allegations to support dismissal.

Offshore Exploration & Prod., LLC v. De Jong Capital, LLC · filed 2023-05-24(a)(1)

While email communications between the parties can qualify as documentary evidence ( Kaplan v Conway & Conway , 173 AD3d 452, 453 [1st Dept 2019]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assocs., Inc. , 120 AD3d 431, 432 [1st Dept 2014]), in this case, the emails do not utterly refute plaintiff's allegations.

Under CPLR 3211(a)(1), testimonial evidence and the emails submitted to refute the allegations did not qualify as documentary evidence for dismissal.

Optical Communications Group, Inc. v. Worms · filed 2023-06-06(a)(1)

Defendants are not entitled to dismissal of the claim under CPLR 3211(a)(1). The testimonial evidence and emails they submitted to refute the allegations do not constitute the type of documentary evidence contemplated by the statute ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651 [1st Dept 2011]; Bulbin v O'Carroll , 173 AD3d 825, 826 [2d Dept 2019]).

Documentary evidence does not warrant dismissal at the pleading stage when it is insufficient in light of the plaintiff's evidence.

Señal v. Lynch · filed 2023-06-06(a)(1)

Moreover, the Archdiocese's documentary evidence does not warrant dismissal of this claim at the pleading stage, especially in light of plaintiff's evidence.

Section 3211(a)(1) does not permit dismissal based on a conflicts waiver when disputed facts remain about the attorney-client relationship.

Fields v. Baker & Hostetler LLP · filed 2023-06-23(a)(1)

"[T]ak[ing] the allegations of the complaint as true" and giving plaintiffs "the benefit of every favorable inference" ( EBC I, Inc., 5 NY3d at 19 [citation omitted]), disputed questions of fact remain, arising from plaintiffs' relationship with defendants. ... Considering these disputed facts, defendants' motion to dismiss plaintiffs' cause of action for legal malpractice must be denied.

Under CPLR 3211(a)(1), emails submitted without their attachments did not unequivocally contradict the allegation that a member was denied access to an LLC's books and records.

Shatz v. Chertok · filed 2023-06-27(a)(1)

The court correctly denied defendants' motion to dismiss the first, second, third, fifth, sixth, ninth, tenth, eleventh, and twelfth causes of action (CPLR 3211[a][1], [7]). ... Among other [*2]things: plaintiff's allegation that defendants did not permit him to review the LLC's books and records are not "unequivocally contradicted" by defendants' submission of emails without their attachments ( Leder v Spiegel , 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]); ... and defendants have not established that plaintiff's direct claims are indistinguishable from his derivative claims.

Under CPLR 3211(a)(1), dismissal requires documentary evidence that utterly refutes the plaintiff’s factual allegations.

Jeffrey v. Collins · filed 2023-07-05(a)(1)

Here, neither the affidavits submitted in support of the defendant's motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) ( see Davis v Henry , 212 AD3d 597; Bonavita v Government Empls. Ins. Co. , 185 AD3d at 893-894; Great Eagle Intl Trade, Ltd. v Corporate Funding Partners, LLC , 104 AD3d 731, 731; Fontanetta v John Doe 1 , 73 AD3d 78), and the defendant's evidentiary submissions were "insufficient to utterly refute the plaintiff's factual allegations" ( Davis v Henry , 212 AD3d at 598; see Hartnagel v FTW Contr. , 147 AD3d 819, 821).

A prior order can support dismissal under CPLR 3211(a)(1) when it conclusively establishes a defense under the law of the case doctrine.

FPG CH 94 Amity, LLC v. Pizzarotti, LLC · filed 2023-07-19(a)(1)

Here, Fidelity's submission of the 2019 order conclusively established that the Supreme Court's determinations in that order concerning the release of the performance bond constituted the law of the case, and warranted dismissal of the fourth cause of action, seeking to recover for an alleged breach of that bond ( see Gerendash v City of New York , 163 AD3d 635, 636).

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.

Matter of Hudson v. Town of Orchard Park Zoning Bd. of Appeals · filed 2023-07-28(a)(1)

Here, contrary to the assertions underlying the Rossis' motion to dismiss, we conclude that the petition-complaint adequately states causes of action based on RPAPL 871, trespass, private nuisance, and negligence ( see generally CPLR 3211 [a] [7]), and that the documentary evidence submitted in support of the Rossis' motion fails to "utterly refute[ the Hudsons'] factual allegations" and thus does not "conclusively establish[ ] a defense as a matter of law" with respect to those causes of action ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) does not treat an insurer’s coverage denial letter as documentary evidence supporting dismissal.

Maursky v. Latham · filed 2023-08-02(a)(1)

Here, the coverage denial letter from the plaintiff's insurer did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) ( see Bonavita v Government Empls. Ins. Co. , 185 AD3d 892, 893-894; Minchala v 829 Jefferson, LLC , 177 AD3d 866, 868; cf. Attallah v Milbank, Tweed, Hadley & McCloy, LLP , 168 AD3d 1026, 1028).

An affidavit submitted in support of a motion to dismiss is not documentary evidence under CPLR 3211(a)(1).

Liu v. Gabbay · filed 2023-08-02(a)(1)

The affidavit submitted by Gabbay in support of the motion was not "documentary" within the meaning of CPLR 3211(a)(1) ( see Hartnagel v FTW Contr. , 147 AD3d 819, 821; Anderson v Armentano , 139 AD3d 769, 770-771; Fontanetta v John Doe I , 73 AD3d 78, 86), and the remainder of the evidence, including invoices sent to the plaintiff from "Dansha Corp.," do not prove that "Dansha Corp." is a trade name for "Dansha Realty Corp." ( cf. JMT Bros. Realty, LLC v First Realty Bldrs., Inc. , 51 AD3d at 455; Matter of Harmon v Ivy Walk Inc. , 48 AD3d 344).

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

Statharos v. Statharos · filed 2023-08-09(a)(1)

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

CPLR 3211(a)(1) permits dismissal 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.

Gold v. 22 St. Felix, LLC · filed 2023-08-09(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). ... Moreover, the documentary evidence submitted by the defendants did not utterly refute the plaintiffs' factual allegations and conclusively establish a defense as a matter of law ( see RCI Plumbing Corp. v Turner Towers Tenant Corp. , 152 AD3d 723, 724).

An employee affidavit asserting that a vehicle was in good condition is not documentary evidence supporting dismissal under CPLR 3211(a)(1).

Holmquist v. Orphanides · filed 2023-09-20(a)(1)

Further, the employee's affidavit did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Phillips v Taco Bell Corp. , 152 AD3d 806, 807).

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.

Harrison DGR44, LLC v. Luiso 44 Harrison, LLC · filed 2023-09-20(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" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Stewart v Berger , 192 AD3d 940, 942).

Under CPLR 3211(a)(1), testimony is not documentary evidence, and evidence offered for dismissal must utterly refute the claim.

Kull v. Ahern Rentals, Inc. · filed 2023-09-26(a)(1)

However, plaintiff's testimony does not constitute "documentary evidence" ( Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]), and, in any event, the testimony fails to utterly refute plaintiff's negligence claim.

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.

Global World Realty, Inc. v. Zubli · filed 2023-09-27(a)(1)

Further, "[a] motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Minzer v Minzer , 206 AD3d 721, 724 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d at 88). Here, the documentary evidence submitted by Isaac and the defendants in support of their motion, namely the lease, utterly refuted the plaintiffs' allegations that they entered into a lease agreement with the Zublis, as the lease conclusively established that the Zublis were not signatories or parties to the lease between Global World and Zash ( see Victory State Bank v EMBA Hylan, LLC , 169 AD3d 963, 965-966).

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

Brooker Engg., PLLC v. SK Trust · filed 2023-09-27(a)(1)

Additionally, some of the evidence submitted by the defendants in support of their motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and, in any event, the defendants' submitted evidence failed to utterly refute the plaintiff's allegations or conclusively establish a defense as a matter of law ( see id. ).

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

Simmons v. Bell · filed 2023-10-04(a)(1)

The Supreme Court also properly determined that the complaint was not subject to dismissal pursuant to CPLR 3211(a)(1). A cause of action may be dismissed pursuant to CPLR 3211(a)(1) only if documentary evidence utterly refutes the underlying allegations and conclusively establishes a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Shah v Mitra , 171 AD3d 971).

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.

Crystal Springs Capital, Inc. v. Big Thicket Coin, LLC · filed 2023-10-11(a)(1)

The Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the action is barred by documentary evidence. "Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874 [internal quotation marks omitted]).

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

Varricchio v. Big Bros. Big Sisters of Am., Inc. · filed 2023-10-18(a)(1)

Here, the affidavit submitted in support of the defendants' motion was not documentary evidence within the meaning of CPLR 3211(a)(1) ( see Davis v Henry , 212 AD3d 597, 598; Phillips v Taco Bell Corp. , 152 AD3d at 807).

Under CPLR 3211(a)(1), documentary evidence that utterly refutes the complaint’s allegations can support dismissal.

Channel Fabrics, Inc. v. Skwiersky, Alpert & Bressler LLP · filed 2023-12-19(a)(1)

However, these allegations are "utterly refute[d]" by the documentary evidence, which defined the scope of the parties' engagement and confirmed that defendants had no such duty ( Chen v Romona Keveza Collection LLC , 208 AD3d 152, 157 [1st Dept 2022] [internal quotation marks omitted]; CPLR 3211 [a][1]).

An affidavit is insufficient documentary evidence to support a pre-answer motion to dismiss under CPLR 3211(a)(1).

K.O. v. YMCA Buffalo Niagara · filed 2023-12-22(a)(1)

Further, the affidavit "does not constitute sufficient documentary evidence for the purpose of a pre-answer CPLR 3211 (a) (1) motion" ( J.D. , 214 AD3d at 561).

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.

Mohawk Constr. & Supply Co., Inc. v. Walsh/Consigli JV · filed 2023-12-27(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 [*2]Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d 714, 715).

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

Hersko v. Hersko · filed 2024-01-04(a)(1)

A motion made pursuant to CPLR §3211 (a)(l) must by documentary evidence "utterly refute" the plaintiffs' a1legations and established a defense as a matter of law. Goshen v Mut. Life Ins. Co., 98 NY2d 314 [2002]. In this case involving family affairs, documentary evidence simp1y cannot determine whether a cause of action exist in the amended complaint when it is the evidence itself that has brought about the cause of action. Therefore, the Court will not dismiss this action pursuant to CPLR §321 l(a)(l).

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.

Truesource, LLC v. Niemeyer · filed 2024-01-10(a)(1)

Here, the Supreme Court properly denied dismissal pursuant to CPLR 3211(a)(1), since the documentary evidence failed to utterly refute the plaintiff's allegation that there was a breach of a valid noncompete covenant and conclusively establish a defense as a matter of law ( see McDonald v O'Connor , 189 AD3d 1208, 1210; see also BDO Seidman v Hirshberg , 93 NY2d 382).

Under CPLR 3211(a)(1), an individual's affidavit denying employment and business dealings does not constitute documentary evidence supporting dismissal.

S.M. v. Madura · filed 2024-01-11(a)(1)

Initially, we find that one of the individual defendants' affidavit, which simply asserts that he never employed decedent and does not do business with his brothers, does not constitute documentary evidence providing a basis for dismissal under CPLR 3211(a)(1) ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]).

Section 3211(a)(1) does not support dismissal when the submitted documents leave unresolved allegations that a conveyance was procured by fraud.

Bennett v. Bennett · filed 2024-01-11(a)(1)

Here, the various documents proffered by defendants contain unambiguous language about the intended effect of their execution. However, plaintiff's claims all hinge upon the allegations that the 2012 reconveyance of the property to defendants was procured by fraud. Against this backdrop, we do not find that the submissions wholly resolve the issues presented.

A managing agent’s affidavit supporting a pre-answer motion to dismiss is not documentary evidence that conclusively establishes a defense under CPLR 3211(a)(1).

Wright v. City of New York · filed 2024-01-18(a)(1)

Portia's managing agent's affidavit in support of its pre-answer motion to dismiss does not constitute documentary evidence under CPLR 3211(a)(1) that conclusively established a defense to plaintiff's amended complaint ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]; Celentano v Boo Realty, LLC , 160 AD3d 576, 577 [1st Dept 2018]; Flowers v 73rd Townhouse LLC , 99 AD3d 431, 431 [1st Dept 2012]).

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

Carpio v. Morris · filed 2024-01-24(a)(1)

Further, the defendant's submissions in support of his motion either did not constitute documentary evidence within the intendment of CPLR 3211(a)(1), or failed to utterly refute the buyer's allegations or conclusively establish a defense as a matter of law ( see CPLR 3211[a][1]; Lewis & Murphy Realty, Inc. v Colletti , 187 AD3d 731, 733).

Section 3211(a)(1) requires documentary evidence that conclusively disproves a claim; an affidavit and email do not meet that requirement.

Payoneer Early Payments Inc. v. Sperber · filed 2024-01-25(a)(1)

But whether or not the facts represented in the affidavit and email could constitute a viable defense—an issue this court does not now reach—those materials are not documentary evidence and do not conclusively disprove plaintiff's claims, as required to warrant dismissal under CPLR 3211 (a) (1).

Under Section 3211(a)(1), the emails offered by defendants did not qualify as documentary evidence for dismissal.

Minkoff v. Creative Manhattan, Inc. · filed 2024-01-31(a)(1)

Although defendants cite to emails as documentary evidence, this Court does not find that those emails qualify as documentary evidence.

Affidavits submitted in support of a motion to dismiss are not documentary evidence under CPLR 3211(a)(1).

Neurological Surgery, P.C. v. Group Health Inc. · filed 2024-02-07(a)(1)

Moreover, the affidavits the plaintiff and counterclaim defendants submitted in support of their motion to dismiss the counterclaims were not documentary evidence for purposes of CPLR 3211(a)(1) ( see Davis v Henry , 212 AD3d 597, 597-598; U.S. Bank N.A. v Kahn Prop. Owner, LLC , 206 AD3d 855, 857).

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents refute the pleaded facts or conclusively establish a defense.

Neurological Surgery, P.C. v. Group Health Inc. · filed 2024-02-07(a)(1)

Contrary to GHI's contention, its submission of the plan contract documents for the City of New York Employees and Retirees GHI Comprehensive Benefits Plan, the Exclusive Provider Option, and the Preferred Provider Option neither refuted the factual allegations of these causes of action nor conclusively established a defense to any of them as a matter of law because the subject documents lacked any information linking the three plans to any of the 284 claims for health insurance benefits that the plaintiff submitted to GHI ( see generally Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Bono v Stim & Warmuth, P.C. , 215 AD3d 911, 911).

Under CPLR 3211(a)(1), a document whose authenticity is disputed does not qualify as documentary evidence supporting dismissal.

Coalition of Landlords v. S. & A. Neocronon, Inc. · filed 2024-02-07(a)(1)

Furthermore, since the plaintiffs dispute the authenticity of an alleged 2010 lease agreement, the 2010 lease agreement is not documentary evidence within the intendment of CPLR 3211(a)(1) ( see Parekh v Cain , 96 AD3d 812, 815; Greenapple v Capital One, N.A. , 92 AD3d 548, 550).

On a motion to dismiss under CPLR 3211(a)(1), a settlement agreement does not utterly refute a complaint’s allegations if interpreting the agreement may require parol evidence.

Interstate Indem. Co. v. East 77 Owners Co., LLC · filed 2024-02-08(a)(1)

Defendant's argument, raised for the first time on appeal, that the "actual recovery" language must be subject to parol evidence is unavailing on a CPLR 3211(a)(1) motion to dismiss. Even if the argument had been raised before the motion court, and even if the language is ambiguous, the very fact that parol evidence may be needed means that the settlement agreement itself does not utterly refute Interstate's factual allegations ( see Goshen , 98 NY2d at 326; Tantallon Austin Hotel, LLC v Wilmington Trust, N.A. , 209 AD3d 513, 514 [1st Dept 2022]).

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

Hasan v. Terrace Acquisitions II, LLC · filed 2024-02-13(a)(1)

As for plaintiff's claim asserting gross negligence, for which EDTPA immunity does not apply, defendant proved a defense as a matter of law (CPLR 3211[a][1]). The pandemic-related policies and the decedent's medical records negate the allegations that defendant engaged in gross negligence because it took no preparatory steps to prevent infections.

A factual contention unsupported by documentary evidence does not support dismissal under CPLR 3211(a)(1).

Weiss v. Vishnepolsky · filed 2024-02-20(a)(1)

Vishnepolsky's contention that she did not actually operate the camera in the hallway and never had, was not supported by documentary evidence.

An affidavit is not documentary evidence under CPLR 3211(a)(1) and does not warrant dismissal when it fails to utterly refute the claims.

Allen v. Thompson · filed 2024-02-22(a)(1)

The affidavit does not constitute documentary evidence under CPLR 3211(a)(1) ( Mamoon v Dot Net Inc. , 135 AD3d 656, 657 [1st Dept 2016]), nor does the affidavit utterly refute the claims.

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

2512 7th Ave. Hous. Dev. Fund Co., Inc. v. Webb & Brooker, Inc. · filed 2024-02-22(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” (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 175 [2021] [internal quotation marks and citation omitted]). ... Defendant’s evidence that the parties mutually agreed to terminate the agreement, namely, the above cited correspondence between the parties, does not conclusively establish a defense to plaintiff’s claims.

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

Peterec-Tolino v. Ciacci · filed 2024-03-07(a)(1)

Plaintiff's signed agreement with the nonparty funder, selling a portion of his interest in any potential future litigation proceeds, "conclusively establishes a defense to the asserted claim as a matter of law," as it shows that defendants did not commit any misconduct by failing to warn plaintiff of the terms of the agreement ( Leon v Martinez , 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]), which plaintiff admittedly signed ( see VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC , 171 AD3d 189, 193 [1st Dept 2019]; Tozzi v Mack , 169 AD3d 547, 548 [1st Dept 2019], lv denied 33 NY3d 908 [2019]).

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

Offshore Exploration & Prod., LLC v. De Jong Capital, LLC · filed 2024-03-07(a)(1)

Here, documentary evidence "utterly refutes" plaintiff's allegations of partnership formation as a matter of law (CPLR 3211(a)(1); Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

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

Ortiz v. City of New York · filed 2024-03-12(a)(1)

However, the documents submitted on NYCHA's motion "conclusively refute[] the allegations that it had any role in the ownership, control, or maintenance of the . . . premises where plaintiff was allegedly injured" ( Philanthrope v Papa John's Pizza , 191 AD3d 563, 563 [1st Dept 2021]; see also CPLR 3211[a][1]; Forbes v Aaron , 81 AD3d 876, 877 [2d Dept 2011]).

Section 3211(a)(1) permits dismissal of a counterclaim when documentary evidence establishes a defense to it.

Samson MCA LLC v. Hudson's Edge Catering & Events LLC · filed 2024-03-12(a)(1)

Accordingly, documentary evidence provides a defense to the usury counterclaims. The motion to dismiss the First and Second Counterclaims is GRANTED.

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

Thayer v. Paulus, Sokolowski & Sartor, LLC · filed 2024-03-12(a)(1)

A CPLR 3211 (a) (1) motion to dismiss should be granted “only if the documentary evidence submitted utterly refutes plaintiff's factual allegations.”

Under CPLR 3211 (a) (1), affidavits are not documentary evidence, and diagrams do not qualify unless their authenticity and accuracy are established.

Machuca v. Collins Bldg. Servs., Inc. · filed 2024-03-13(a)(1)

But the vice president’s affidavit is not documentary evidence. (See Asberry, 190 AD3d at 429.) Its representations cannot support a CPLR 3211 (a) (1) motion. The building diagrams do not qualify as documentary evidence, either.

On a motion under section 3211(a)(1), defendants must offer documentary evidence that conclusively refutes the plaintiff's allegations.

Howard v. Reserve at Spaulding Green · filed 2024-03-15(a)(1)

In a CPLR 3211 (a) (1) motion, "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" ( Shephard v Friedlander , 195 AD3d 1191, 1194 [3d Dept 2021]), and we conclude that defendants did not meet their burden ( see University Hill Realty, Ltd. v Akl , 214 AD3d 1467, 1468-1469 [4th Dept 2023]; Thomas A. Sbarra Real Estate, Inc. v Lavelle-Tomko , 84 AD3d 1570, 1571 [3d Dept 2011]).

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

Carrols Rest. Group, Inc. v. American Guar. & Liab. Ins. Co. · filed 2024-03-15(a)(1)

"A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]" ( Baumann Realtors, Inc. v First Columbia Century-30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014] [internal quotation marks omitted]).

A court may treat a motion to dismiss that relies on documentary record evidence as an application under CPLR 3211(a)(1).

Muladzhanov v. City of New York · filed 2024-03-15(a)(1)

To the extent that respondents rely upon documentary record evidence, the court deems the true nature of their application as pursuant to CPLR 3211(a)(1).

Ambiguous or conflicting governing documents cannot support dismissal under CPLR 3211(a)(1).

Bacharach v. Board of Mgrs. of the Brooks-Van Horn Condominium · filed 2024-03-19(a)(1)

As such[*2], the ambiguous or conflicting provisions in the governing documents are fatal to the board's CPLR 3211(a)(1) motion ( see Mehra v Morrison Cohen LLP , 203 AD3d 438, 439 [1st Dept 2022]).

Section 3211(a)(1) does not treat letters, emails, or a defendant principal’s affirmation as documentary evidence supporting dismissal.

Saadia v. National Socy. of Hebrew Day Schs., Inc. · filed 2024-03-20(a)(1)

The letters, emails, and affirmation of the defendant's principal submitted by the defendant in support of its motion were not documentary evidence within the meaning of CPLR 3211(a)(1) ( see Leader v Steinway, Inc. , 180 AD3d 886, 888; Shah v Mitra , 171 AD3d at 973).

Medical reports do not qualify as documentary evidence for a motion to dismiss under CPLR 3211(a)(1).

Pergament v. Government Empls. Ins. Co. ("GEICO") · filed 2024-03-20(a)(1)

Here, with respect to the causes of action against Geico alleging bad faith refusal to settle the underlying personal injury action for the subject policy limit and breach of the covenant of good faith and fair dealing, the medical reports submitted by Geico in support of its motion do not constitute "documentary evidence within the intendment of CPLR 3211(a)(1)" ( Jeffrey v Collins , 218 AD3d 451, 453), and Geico's evidentiary submissions were "insufficient to utterly refute the plaintiff's factual allegations" ( Davis v Henry , 212 AD3d 597, 598).

Section 3211(a)(1) does not permit dismissal based solely on counsel’s assertion that the disputed property has been returned.

Sebco Dev., Inc. v. Siegel & Reiner, LLP · filed 2024-03-20(a)(1)

Accordingly, an assertion by counsel is clearly insufficient to warrant dismissal of an action pursuant to CPLR § 3211.

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

Sebco Dev., Inc. v. Siegel & Reiner, LLP · filed 2024-03-20(a)(1)

As discussed above, a pre-answer motion for dismissal pursuant to CPLR § 3211(a)(1), based upon documentary evidence, will be granted if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen at 326; Leon at 88; IMO Industries, Inc. at 10).

On a motion to dismiss for failure to state a cause of action, a court may consider documentary evidence submitted in support of the motion.

Ellis v. City of New York · filed 2024-03-20(a)(7)

Thus, while not dispositive, the court here was within its right to consider Defendant's documentary evidence submitted in support of the motion to dismiss, namely the Negotiated Plea Agreement for Settlement of Disciplinary Matters, annexed to the Affirmation of Bryan Carr Olert as Exhibit B, NYSCEF Dkt. 8.

Website printouts whose contents can be controverted by other evidence do not qualify as documentary evidence for a motion to dismiss under CPLR 3211(a)(1).

Twitchell Tech. Prods., LLC v. Mechoshade Sys., LLC · filed 2024-03-27(a)(1)

Although we acknowledge that printouts from websites may constitute documentary evidence under certain circumstances, in this case, the contents of the website printouts do not so qualify, as they can be controverted by other evidence ( see MJ Lilly Assoc., LLC v Ovis Creative, LLC , 221 AD3d at 806; Guido v Orange Regional Med. Ctr. , 102 AD3d at 830; Springer v Almontaser , 75 AD3d 539, 540).

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

Thurman v. Sullivan Props. L.P. · filed 2024-04-04(a)(1)

Nevertheless, the documents themselves do not utterly refute plaintiff's allegations that the apartment was wrongly or fraudulently removed from rent regulation, and thus the motion to dismiss was properly denied ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Competing affidavits and photographs whose authenticity or relevance is disputed do not qualify as documentary evidence for dismissal under subsection (a)(1).

Downstate at Lich Holding Co., Inc. v. Fortis Prop. Group, LLC · filed 2024-04-05(a)(1)

Competing affidavits and photographs, the authenticity and relevance of which are in dispute to some degree ( see NYSCEF Doc No. 125, ¶¶ 5-9), are not within the purview of CPLR 3211 (a) (1) ( see Carr , 182 AD3d at 668; accord J.D. v Archdiocese of NY , 214 AD3d 561, 561 [1st Dept 2023]; Davis v Henry , 212 AD3d 597, 598 [2d Dept 2023]).

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

Goldin Real Estate, LLC v. Shukla · filed 2024-05-01(a)(1)

Insofar as that branch of their motion sought dismissal pursuant to CPLR 3211(a)(1), the defendants relied upon emails and affidavits, which do not constitute documentary evidence within the meaning of CPLR 3211(a)(1), as the contents thereof "can be controverted by other evidence" ( MJ Lilly Assoc., LLC v Ovis Creative, LLC , 221 AD3d 805, 806; see Varricchio v Big Bros. Big Sisters of Am., Inc. , 220 AD3d 905). Furthermore, this evidence failed to utterly refute the plaintiff's allegations or conclusively establish a defense as a matter of law ( see Varricchio v Big Bros. Big Sisters of Am., Inc. , 220 AD3d at 906).

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.

Eccles v. Shamrock Capital Advisors, LLC · filed 2024-05-23(a)(1)

A defendant is entitled to dismissal pursuant to CPLR 3211 (a) (1) only if the documentary evidence "utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) does not treat affidavits, deposition testimony, or letters as documentary evidence for dismissal.

Edwards v. Javash Realty, LLC · filed 2024-07-08(a)(1)

Therefore, "affidavits,... deposition testimony,... letters are [not considered]... 'documentary evidence'... within the... intendment of... CPLR 3211 (a) (1)"

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

Bruce v. Morton Williams Supermarkets, Inc. · filed 2024-07-15(a)(1)

Pursuant to CPLR 321 l(a)(l), "[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law" (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431,433 [1st Dept 2014] [internal citations and quotations omitted]). "To be considered documentary" such evidence "must be unambiguous and of undisputed authenticity" (Toribio v 575 Broadway LLC, 61 Misc 3d 1224(A) [Sup Ct, NY County 2018] [internal citations and quotations omitted]). Significantly, "[j]udicial records, mortgages, deeds and contracts constitute documentary evidence, but affidavits and deposition testimony are not considered documentary evidence" (Id. [internal citations omitted]).

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

Olivera-Perez v. B.A.M. Bldrs., Inc. · filed 2024-07-24(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" ( Carpio v Morris , 223 AD3d 781, 782; see Goshen v Mut. Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

A police report does not qualify as documentary evidence for a motion to dismiss under CPLR § 3211(a)(1).

Anaya v. City of New York · filed 2024-08-21(a)(1)

A police report does not qualify as documentary evidence for the purpose of CPLR § 3211 (a)(1) and, in any event, the police report only raises additional questions regarding what identifying information was on Decedent's person when she was taken to Bellevue.

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

Tandym Group, LLC v. Mission Staffing Inc. · filed 2024-08-21(a)(1)

The court does not consider these additional facts on this motion because "factual affidavits do not constitute documentary evidence" that can be considered "within the meaning of' CPLR 3211 (a)(l) (see Serao v Bench·Serao, 149 AD3d 645, 646 [1st Dept 2017)).

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

Putney Inv. Group Ltd. v. New Hampshire Ins. Co. · filed 2024-09-03(a)(1)

It is well settled that affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1).

Under CPLR 3211(a)(1), an affidavit and an employee sick record report do not qualify as documentary evidence supporting dismissal.

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

Here, Cofield’s affidavit and the Sick Record Report do not qualify as documentary evidence for purposes of CPLR 3211 (a) (1) (see Patterson Belknap Webb & Tyler LLP v Marcus & Cinelli LLP, — AD3d —, 2024 NY Slip 02670, *2 [1st Dept 2024]).

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

Board of Mgrs. of the 37, 39 Madison St. Condominium v. 31 Madison Dev., LLC · filed 2024-09-18(a)(1)

This documentary evidence conclusively established a defense to so much of that cause of action as sought consequential damages as a matter of law ( see Mohawk Constr. & Supply Co., Inc. v Walsh/Consigli JV , 222 AD3d 965; Noble Thread Corp. v Vormittag Assoc. , 305 AD2d 386, 387).

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

Fair Hous. Justice Ctr., Inc. v. Fairstead Mgt. LLC · filed 2024-09-19(a)(1)

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted "only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Morgenthow & Latham v Bank of N.Y. Co., Inc., 305 AD2d 74, 78 [1st Dept 2003]).

Under CPLR 3211(a)(1), an affidavit is not documentary evidence, and submitted documents must utterly refute the plaintiff’s factual allegations to support dismissal.

Siemens Indus., Inc. v. Skanska Walsh Design-Build Joint Venture · filed 2024-10-02(a)(1)

Here, the affidavit submitted in support of Skanska's motion did not constitute documentary evidence ( see Goldin Real Estate, LLC v Shukla , 227 AD3d 674). Further, the other evidence submitted in support of Skanska's motion, that is, the change orders and subcontract, failed to utterly refute Siemens's factual assertion that it sought to recover impact damages under a separate sub-article of the subcontract ( see Bonavita v Government Empls. Ins. Co. , 185 AD3d 892, 894; Arnell Constr. Corp. v New York City Sch. Constr. Auth. , 177 AD3d 595, 597).

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

Hecht v. 89th St. Owners Corp. · filed 2024-10-04(a)(1)

Vice President Eric Usinger's affirmation does not, by definition, constitute documentary evidence that may be considered on a motion pursuant to CPLR 3211 (a) (1).

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

Diner v. Diner · filed 2024-10-08(a)(1)

Similarly, to succeed on a motion to dismiss pursuant to CPLR §3211(a)(1), the documentary evidence that forms the basis of the defense raised must be such that it resolves all factual issues as a matter of law, and thus conclusively disposes of the plaintiff's claim.

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

SMG Automotive Holdings, LLC v. Brooklyn Store, LLC · filed 2024-10-09(a)(1)

The plaintiff's documentary evidence did not utterly refute the defendant's factual allegations or conclusively establish a defense as a matter of law ( see Coalition of Landlords, Homeowners & Merchants, Inc. v S. & A. Neocronon, Inc. , 224 AD3d 658, 659-660).

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

Klein v. Catholic Health Sys. of Long Is., Inc. · filed 2024-10-09(a)(1)

"Under CPLR 3211(a)(1), dismissal is warranted only if 'the documentary evidence utterly refutes [*2]plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ( 344 Rockaway Parkway Inv. Group, LLC v Estate of Colon , 219 AD3d 1388, 1389, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874).

Section 3211(a)(1) does not permit dismissal based on wage statements whose contents are not essentially undeniable.

Shapiro v. Trihop 14th St. LLC · filed 2024-10-09(a)(1)

These statements are not the type of evidence which should be considered on a motion to dismiss based on documentary evidence as the contents of them are not essentially undeniable as is required for dismissal based on CPLR § 3211(a)(1).

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

Hillman Hous. Corp. v. Area Garage LLC · filed 2024-10-09(a)(1)

The argument that the Lease constitutes sufficient documentary evidence to dismiss the counterclaim under CPLR § 3211(a)(1) fails because the Lease does not conclusively establish a defense to the claims asserted by Area Garage as a matter of law.

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

Hickey v. 3M Co. · filed 2024-10-09(a)(1)

It is well settled that affidavits do not constitute documentary evidence within the meaning of CPLR 3211 (a)( l ).

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

62 Wooster, LLC v. TML N.Y. Inc. · filed 2024-10-11(a)(1)

As all of the claims against the Guarantors stated in the Amended Complaint accrued after the Tenant vacated the Premises, the documentary evidence, the guaranties, utterly refutes plaintiffs factual allegations as to the Guarantors' obligations, conclusively establishing a defense as a matter of law.

Under CPLR 3211(a)(1), the movant must show that documentary evidence resolves all factual issues and conclusively disposes of the plaintiff’s claim.

Total Asset Recovery Servs. LLC v. MetLife, Inc. · filed 2024-10-13(a)(1)

On a CPLR 3211 (a) (1) motion to dismiss, the movant has the "burden of showing that the relied upon documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim."

On a motion to dismiss under CPLR 3211(a)(1), the court may consider the plaintiff's affidavit from a prior proceeding.

Nath v. Chemtob Moss Forman & Beyda, LLP · filed 2024-10-15(a)(1)

In considering defendants' motion pursuant to CPLR 3211(a)(1), we may consider plaintiff's own affidavit from the prior divorce proceeding ( see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013], lv denied 33 NY3d 914 [2019], cert denied — US &mdash, 140 S Ct 2510 [2020]).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when it fails to conclusively disprove a pleaded contractual indemnification claim.

Board of Mgrs. of 87-89 Leonard St. Condominium v. St. Owner · filed 2024-10-15(a)(1)

This is especially true because GMA's assertion that no other agreements exist is directly contradicted by the existence of the Insurance Rider. Therefore, the court cannot infer that no other indemnification agreements exist, and that the three known agreements conclusively establish that there is no contractual indemnification claim (see Morgenthow& Latham v BankofN.Y. Co., Inc., 305 AD2d 74, 78 [1st Dept 2003] [allegations in complaint presumed true except where "flatly contradicted by documentary evidence"]).

An affidavit submitted to supplement a contract does not qualify as documentary evidence under CPLR 3211(a)(1).

Cajahuanca v. City of New York · filed 2024-10-23(a)(1)

Moreover, the affidavit of Casa's chief executive officer and president submitted to supplement the purchase order agreement did not constitute documentary evidence.

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

Juman v. Cape Church Assoc., LLC · filed 2024-10-24(a)(1)

The affidavit submitted by Ice Electric in support of its motion has no probative value, as factual affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Art & Fashion Group Corp. v Cyclops Prod., Inc ., 120 AD3d 436, 438 [1st Dept 2014]).

Section 3211(a)(1) does not permit dismissal of a scrivener's-error claim solely on the basis of the contract alleged to contain the error.

McGraw Hill LLC v. SoapBox Labs Ltd. · filed 2024-10-24(a)(1)

McGraw Hill is correct in contending that a contract with an alleged scrivener's error cannot in and of itself constitute documentary evidence that utterly refutes a claim of scrivener's error under CPLR § 321 l(a)(l).

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.

Pramukhraj Group, LLC v. Starr Surplus Lines Ins. Co. · filed 2024-11-04(a)(1)

Under CPLR § 321 l(a)(l) documentary evidence provides a basis for dismissing a cause of action "where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mutual Life Ins. Co. ofNY, 98 NY2d 314, 326 [2002].

Under CPLR 3211(a)(1), an affirmation denying an allegation is not sufficient documentary evidence and must conclusively establish a defense as a matter of law.

Cartagena v. Volotsenko · filed 2024-11-07(a)(1)

Volotsenko's affirmation denying this allegation does not constitute sufficient documentary evidence for the purposes of a CPLR 3211(a)(1) motion ( Patterson Belknap Webb & Tyler LLP v Marcus & Cinelli LLP , 227 AD3d 505, 506 [1st Dept 2024]) and does not conclusively establish a defense to plaintiff's claim as a matter of law ( Holder v Jacob , AD3d , 2024 NY Slip Op 03864, *7 [1st Dept 2024]).

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

Reyes v. Seaqua Delicatessen, Inc. · filed 2024-11-13(a)(1)

Here, the documents submitted with respect to the prior proceedings in federal court and prior federal administrative proceedings do not utterly refute the plaintiffs' allegation that they may independently recover under the New York Labor Law for failure to pay the minimum wage and overtime, as alleged in the first and second causes of action.

An insurance policy and its endorsements qualify as documentary evidence under CPLR 3211(a)(1) when their authenticity is undisputed.

CGreen, LLC v. Quantum Impact Steel, LLC · filed 2024-11-07(a)(1)

The authenticity of the policy and endorsements are undisputed and, as such, constitute documentary evidence for purposes of CPLR 3211 (a) (1) ( see Calhoun v Midrox Ins. Co. , 165 AD3d 1450, 1451 [3d Dept [*2]2018]).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the plaintiff's allegations or conclusively establish a defense to warrant dismissal.

Berger v. Lewis Johs Avallone Aviles, LLP · filed 2024-11-27(a)(1)

Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff's allegations or conclusively establishing a defense as a matter of law ( see Ki Kuo Zhang v Lau , 210 AD3d 829, 831; Shan Yun Lin v Lau , 210 AD3d at 818).

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

Cox v. 36 S Oxford St, LLC · filed 2024-11-27(a)(1)

Under CPLR § 3211(a)(1), a claim that has been utterly defeated by documentary evidence is properly dismissed.

Section 3211(a)(1) requires documentary evidence that utterly refutes the plaintiff’s allegations and conclusively establishes a defense; affidavit testimony does not qualify as documentary evidence.

Zatorski v. Island Transp. Corp. · filed 2024-12-02(a)(1)

Here, defendant has failed to utterly refute the plaintiff’s allegations and conclusively establish its defense of the MCA exemption. ... As is well-settled, affidavit testimony is not documentary evidence for purposes of a motion to dismiss (e.g. Tsimerman v Janoff, 40 AD3d 242, 242 [1st Dept 2007]).

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.

Postiglione v. Sacks & Sacks, LLP · filed 2024-12-04(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" ( Maursky v Latham , 219 AD3d 473, 475 [internal quotation marks omitted]).

Dismissal under CPLR 3211(a)(1) requires documentary evidence that utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

New York Alpha of Phi Kappa Psi Assn., Inc. v. Cornell Univ. · filed 2024-12-05(a)(1)

Finally, although defendant also sought dismissal pursuant to CPLR 3211 (a) (1), it failed to submit documentary evidence that "utterly refute[d] 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 [2d Dept 2019] [internal quotation marks, brackets and citation omitted]; compare DerOhannesian v City of Albany , 110 AD3d 1288, 1290 [3d Dept 2013], lv denied 22 NY3d 862 [2014]; Rosen v Vassar Coll. , 135 AD2d 248, 251-525 [3d Dept 1988], lv denied 72 NY2d 805 [1988]).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes that defendants acted only as agents for disclosed principals and were not personally bound.

Drexel Burnham Lambert Group, Inc. v. Vigilant Insurance · filed 1993-01-22(a)(1)

Five of the defendants ... seek dismissal under CPLR 3211 (a) (1) on the grounds that documentary evidence demonstrates that each of them are not carriers but brokers, managers or agents for disclosed principals (i.e., other defendants) and as such agents they are subject to no liability under any of the policies. ... There is no indication any of them was to be personally bound. ... There is no need for discovery. As to these five defendants, the complaint in its entirety must be dismissed.

An ambiguous contract does not warrant dismissal under CPLR 3211(a)(1) or (7) when the documentary evidence fails to conclusively establish a defense.

City of Buffalo City Sch. Dist. v. LPCiminelli, Inc. · filed 2018-03-16(a)(1), (a)(7)

We thus conclude that the "documentary evidence submitted [by LPC does not] conclusively establish[ ] a defense to the asserted claim[] as a matter of law" ( Beal Sav. Bank , 8 NY3d at 324 [internal quotation marks omitted]), and dismissal of the third cause of action pursuant to CPLR 3211 (a) (1) or (7) is not appropriate.

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

Getzel Schiff & Pesce, LLP v. Shtayner · filed 2024-12-11(a)(1)

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [a party's] factual allegations, conclusively establishing a defense as a matter of law" ( Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874 [internal quotation marks omitted]; see [*2]Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88). Here, the documentary evidence, consisting of engagement letters ( see Attallah v Milbank, Tweed, Hadley & McCloy, LLP , 168 AD3d 1026, 1028), utterly refuted the defendants' factual allegations and conclusively established a defense to those claims as a matter of law.

Under CPLR 3211(a)(1), excerpts of trial testimony from prior actions are not documentary evidence supporting dismissal.

Dellwood Dev., Ltd. v. Coffinas Law Firm, PLLC · filed 2024-12-11(a)(1)

The excerpts of trial testimony from prior actions submitted in support of the defendants' motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Bulbin v O'Carroll , 173 AD3d 825, 826; Petrone v Davidoff Hutcher & Citron, LLP , 150 AD3d 776), and the other evidence that the defendants submitted failed to utterly refute the plaintiffs' factual allegations and conclusively establish a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Section 3211(a)(1) requires documentary evidence to conclusively establish a defense; an unauthenticated lease alone is insufficient to establish a defense based on the omission of a necessary party.

Hakim v. Ahmed · filed 2024-12-13(a)(1)

Moreover, the unauthenticated lease is not sufficient, by itself, to conclusively establish a defense as to the omission of a necessary party upon documentary evidence pursuant to CPLR § 3211(a)(1) ( see Goshen v. Mutual Life Ins. Co. of New York , 98 NY2d 314, 326 [2002]; see also Fontanetta v. John Doe 1 , 73 AD3d 78, 86 [2d Dept 2010]).

Department of Buildings webpage printouts do not constitute documentary evidence for dismissal under CPLR 3211(a)(1).

Mikoma Elec., LLC v. Otek Bldrs., LLC · filed 2024-12-18(a)(1)

Here, the Supreme Court properly denied dismissal pursuant to CPLR 3211(a)(1) because the printouts from the New York City Department of Buildings's webpage, submitted by the defendants to prove that Mikoma Tech was not a licensed electrical business, do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see MJ Lilly Assoc., LLC v Ovis Creative, LLC , 221 AD3d 805, 806; Guido v Orange Regional Med. Ctr. , 102 AD3d 828, 830).

A motion to dismiss under CPLR 3211(a)(1) requires documents that resolve all factual issues as a matter of law and conclusively dispose of the claim.

Petrasova v. Walker Ridge Constr. NY LLC · filed 2024-12-18(a)(1)

To dismiss a claim pursuant to CPLR 3211 (a.)(1), the inovant must produce documents that resolve "all factual issues as a matter of law, and c:onclusively [dispose] of the plaintiff's claim" {53 4 K, LLC v Flagstat Bank FSB, 187 AD3d 97 I [2d Dept 2020]; see also Braun Sollet v Dahan, 173 A.D.3d 803, 805 [2d Dept 2019]).

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

Loan Trust, LLC v. Appraisal Source Inc. · filed 2024-12-20(a)(1)

Dismissal under CPLR 3211 (a) (1) is appropriate where the documentary evidence utterly refutes the plaintiff's claims and conclusively establishes a defense as a matter of law (id. at 88).

Section 3211(a)(1) does not treat affidavits, deposition testimony, or letters as documentary evidence for a motion to dismiss.

Saktaganov v. 20 Arion LLC · filed 2024-12-23(a)(1)

"Neither ... affidavits, deposition testimony, ... nor letters are considered ... documentary evidence within the intendment ... 3211(a)(1)" (id).

A paper qualifies as documentary evidence under CPLR 3211(a)(1) only if it is unambiguous, its authenticity is undisputed, and its contents are essentially undeniable.

Fortinbras Enters. LP v. TigerRisk Partners LLC · filed 2025-01-03(a)(1)

A particular paper will qualify as “documentary evidence” only if it satisfies the following criteria: (1) it is “unambiguous”; (2) it is of “undisputed authenticity”; and (3) its contents are “essentially undeniable.”

Section 3211(a)(1) permits dismissal when documentary evidence, including terms of use, definitively disposes of a claim.

McWashington v. Hyatt Corp. · filed 2025-01-07(a)(1)

As for Agoda's motion to dismiss, the terms of use constitute documentary evidence under CPLR 3211(a)(1), and the limitation of liability clause in the terms of use definitively disposes of plaintiff's claim to recover damages from Agoda for personal injury caused by the resort's alleged negligence ( see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal of a counterclaim on documentary evidence only when the evidence conclusively disposes of the claim.

MAP Health Holdings, LLC v. Espresso Capital, Ltd. · filed 2025-01-07(a)(1)

Dismissal likewise unwarranted under CPLR 3211(a)(1), as MAP’s proffered documentary evidence does not resolve conclusively dispose of the defendants’ counterclaim.

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

Cedar Manor Mut. Hous. Corp v. Taylor · filed 2025-01-10(a)(1)

Here, even assuming Petitioner's rent ledger could be considered documentary evidence for purposes of a CPLR 3211(a)(1) or (7) motion, it fails to utterly refute the sufficiency of Petitioner's rent demand.

Under CPLR 3211(a)(1), documentary evidence supporting dismissal must resolve all factual issues and completely dispose of the claim.

Duran v. FLA Mtge. Capital 2 LLC · filed 2025-01-13(a)(1)

In order to be successful on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must resolve all factual issues and completely dispose of the claim (see Held v Kaufman, 91 NY2d 425 [1998]; Teitler v Pollack & Sons, 288 AD2d 302 [2d Dept 2001]).

Under CPLR 3211(a)(1), an architectural services agreement that does not utterly refute the plaintiff's negligence allegations cannot support dismissal of that claim.

Katsorhis v. 718 W. Beech St, LLC · filed 2025-01-15(a)(1)

In addition, the architecture agreement between Up Studio and 718 West Beech was insufficient to utterly refute the plaintiffs' allegations of negligence against Winberry ( see Phoenix Grantor Trust v Exclusive Hospitality, LLC , 172 AD3d 923, 925).

Under CPLR 3211(a)(1), documents do not support dismissal unless they utterly refute the plaintiff’s factual allegations.

Greenberg v. Seton Educ. Partners · filed 2025-01-30(a)(1)

However, the documents submitted by the Defendants, including the pay stub demonstrating that Plaintiff earned wages from Brilla, and her offer letter stating that her position as ICT math teacher was "with Brilla Preparatory Charter Schools", and the Plaintiff's acknowledgment of the Brilla employee manual, fail to "utterly refute" the Plaintiff's factual allegations that Seton employees, including Defendant Hanratty, exercised immediate control over her work at a Brilla school, and that a Seton employee set conditions for her employment and controlled the determination of whether her employment would be terminated.

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

Mendez v. Primitive Christian Church · filed 2025-01-31(a)(1)

In the present case, Movant-Defendants submit two affidavits as documentary evidence; however, these affidavits are insufficient to qualify as documentary evidence (see Berger v. Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2d Dept 2003]).