At page 365 “to succeed on a motion to dismiss pursuant to cplr 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim”2 citing cases
- Cohen v. Nassau Educators Fed. Credit Union, 37 A.D.3d 751 (N.Y. App. Div. 2d Dep't 2007).published“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs…
- Logatto v. City of New York, 51 A.D.3d 984 (N.Y. App. Div. 2d Dep't 2008).publishedDismissal under CPLR 3211 (a) (1) is warranted where the “documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Sheridan v Town of Orangeto…
At page 366 who previously was employed by the defendant, commenced this action following the defendant’s termination of certain benefits. The documentary evidence…1 citing case
- Dorme v. Slingerland, 41 A.D.3d 596 (N.Y. App. Div. 2d Dep't 2007).publishedFurther, the issue regarding the benefits to which the petitioner is entitled is subject to the grievance proceeding as outlined in the subject CBA, and the petitioner’s failure to pursue that procedure warrants denial of the petition and…
Other citing cases
- Jefferson Apts., Inc. v. Mauceri, 52 Misc. 3d 1012 (N.Y. Sup. Ct. 2016).published
- Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191 (N.Y. App. Div. 2d Dep't 2009).published
v.
Town of Orangetown
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (O’Rourke, J.), dated April 9, 2004, as, in effect, granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Roth v Goldman, 254 AD2d 405 [1998]). Here, the plaintiff, a retired police officer[*366] who previously was employed by the defendant, commenced this action following the defendant’s termination of certain benefits. The documentary evidence established, however, that the plaintiff’s claim was governed by a collective bargaining agreement and he failed to pursue the grievance procedure contained therein and exhaust his administrative remedies (see Manfro v McGivney, 11 AD3d 662 [2004]; Matter of O’Connor v Police Commn. of Town of Clarkstown, 301 AD2d 654 [2003]; Formica v Town of Huntington, 295 AD2d 400 [2002]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint. Adams, J.P., Krausman, Spolzino and Fisher, JJ., concur.