for practitioners and students of New York practice.
Thursday, July 20, 2017
Documentary evidence and dismissal.
Practice point: A motion to dismiss a complaint based upon documentary evidence under CPLR3211(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. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute.
Case: Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017)