Friday, November 9, 2012

Defense based on documentary evidence.

Practice point: A defendant may move for judgment dismissing a cause of action on the ground that a defense is founded upon documentary evidence, pursuant to CPLR 3211[a][1]. The motion may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note:  Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.

Case: Sands Point Partners Private Client Group v. Fidelity Natl. Tit. Ins. Co., NY Slip Op 07097 (2d Dept. 2012).

Tuesday's issue: Liquidated damages provisions.