Tuesday, May 17, 2016

The standard for documentary evidence on a motion to dismiss.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss pursuant to CPLR 3211(a)(1) in this legal malpractice action. Defendant argued that documentary evidence established that it had been retained only with respect to plaintiff's Workers' Compensation claim. Defendant's letters to plaintiff, submitted by defendant on its motion, are not documentary evidence for the purpose of a 3211(a)(1) motion pursuant to CPLR 3211(a)(1). Neither is the affirmation of one of defendant's members documentary evidence.

While defendant did submit documentary evidence, it did not utterly refute plaintiff's allegations, as it required to succeed on the motion.

Student note:  To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.  Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence, while affidavits and letters do not.

Case:  Anderson v. Armentano, NY Slip Op 03690 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  A fall down the stairs.