Wednesday, September 3, 2014

Emails, affidavits, and documentary evidence.

Practice point::  A cause of action may be dismissed pursuant to CPLR 3211(a)(1) only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, and definitely disposing of the plaintiff's claim.

Student note:  In a proper case, email correspondence can suffice as documentary evidence for purposes of CPLR 3211(a)(1).  However, factual affidavits are not documentary evidence within the meaning of the statute.

Case:  Art & Fashion Group Corp. v. Cyclops Prod., Inc., NY Slip Op 06008 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Attorney-defendants' alleged participation in a fraudulent corporate scheme.