Practice point: In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable. While judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts qualify as documentary evidence, affidavits, deposition testimony, and letters do not.
Student note: A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the
ground that a defense is founded on documentary evidence will be granted only where the documentary evidence utterly refutes the
plaintiff's factual allegations, conclusively establishing a defense as a
matter of law. The evidence submitted in support of such motion must be documentary or the motion must be denied.
Case: Attias v. Costiera, NY Slip Op 06163 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Summary judgment in a legal malpractice action.