Nunez v. Mohamed, 104 A.D.3d 921 (N.Y. App. Div. 2013). · Go Syfert
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Nunez v. Mohamed, 104 A.D.3d 921 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …a motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law at p. 922 ✓ Topic ↗
37 citation events (37 in the last 25 years) across 3 distinct courts.
Strongest positive: Board of Managers of 100 Congress Condominium v. SDS Congress, LLC (nyappdiv, 2017-07-05)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) Board of Managers of 100 Congress Condominium v. SDS Congress, LLC
N.Y. App. Div. · 2017 · confidence medium
A motion to dismiss a complaint based upon documentary evidence under CPLR 3211 (a) (1) may be granted “only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Nunez v Mohamed, 104 AD3d 921, 922 [2013]).
cited Cited as authority (rule) Persaud v. Everest National Insurance
N.Y. App. Div. · 2016 · confidence medium
Further, Everest’s proof did not utterly refute the plaintiffs’ factual allegations, conclusively establishing a defense as a matter of law (see Nunez v Mohamed, 104 AD3d 921, 922 [2013]).
discussed Cited as authority (rule) Liberty Affordable Housing, Inc. v. Maple Court Apartments
N.Y. App. Div. · 2015 · confidence medium
Although the Second Department has not considered the issue as directly as the First Department did in Basis Yield, that Court has also continued to evaluate, post -Miglino, whether a defendant’s evidentiary submissions were sufficiently conclusive to warrant summary dismissal under CPLR 3211 (a) (7) (see Rosin v Weinberg, 107 AD3d 682, 683-684 [2013]; see also QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 64-65 [2013]; Nunez v Mohamed, 104 AD3d 921, 922 [2013]).
discussed Cited as authority (rule) Liberty Affordable Housing, Inc. v. Maple Court Apartments
N.Y. App. Div. · 2015 · confidence medium
Although the Second Department has not considered the issue as directly as the First Department did in Basis Yield, that Court has also continued to evaluate, post -Miglino, whether a defendant’s evidentiary submissions were sufficiently conclusive to warrant summary dismissal under CPLR 3211 (a) (7) (see Rosin v Weinberg, 107 AD3d 682, 683-684 [2013]; see also QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 64-65 [2013]; Nunez v Mohamed, 104 AD3d 921, 922 [2013]).
discussed Cited as authority (rule) Tucholski v. State of New York (2×) also: Cited "see"
N.Y. App. Div. · 2014 · confidence medium
Court of Claims Act § 10 (6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim (see Morris v Doe, 104 AD3d 921, 921 [2013]; Qing Liu v City Univ. of N.Y., 262 AD2d 473, 474 [1999]).
discussed Cited as authority (rule) Encore Lake Grove Homeowners Ass'n v. Cashin Associates
N.Y. App. Div. · 2013 · confidence medium
“A motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Nunez v Mohamed, 104 AD3d 921, 922 [2013]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Cervini v Zanoni, 95 AD3d 919, 920-921 [2012]; Rubinstein v Salomon, 46 AD3d 536, 539 [2007]; Shaya B.
discussed Cited as authority (rule) Encore Lake Grove Homeowners Ass'n v. Cashin Associates
N.Y. App. Div. · 2013 · confidence medium
“A motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Nunez v Mohamed, 104 AD3d 921, 922 [2013]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Cervini v Zanoni, 95 AD3d 919, 920-921 [2012]; Rubinstein v Salomon, 46 AD3d 536, 539 [2007]; Shaya B.
discussed Cited as authority (rule) Barkany Asset Recovery & Management v. Southwest Securities Inc.
N.Y. Sup. Ct. · 2013 · confidence medium
Auth., 50 AD3d 1013, 1014 [2d Dept 2008] [internal quotation marks and citations omitted]; see also Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Nunez v Mohamed, 104 AD3d 921, 922 [2d Dept 2013]).
discussed Cited "see" Melchner v. Town of Carmel
N.Y. App. Div. · 2021 · signal: see · confidence high
Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 ; see Nunez v Mohamed , 104 AD3d 921, 922 ).
discussed Cited "see" Hyatt v. State of New York
N.Y. App. Div. · 2020 · signal: see · confidence high
"No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" ( Casey v State of New York , 161 AD3d at 721 [internal quotation marks omitted]; see Morris v Doe , 104 AD3d 921 ; Qing Liu v City Univ. of N.Y. , 262 AD2d 473, 474 ).
cited Cited "see" Decker v. State of New York
N.Y. App. Div. · 2018 · signal: see · confidence high
"No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" ( Qing Liu v City Univ. of N.Y. , 262 AD2d 473, 474 ; see Morris v Doe , 104 AD3d 921 ).
cited Cited "see" Casey v. State of New York
N.Y. App. Div. · 2018 · signal: see · confidence high
"No one factor is deemed controlling, nor is the presence or absence of any one factor determinative" ( Qing Liu v City Univ. of N.Y. , 262 AD2d 473, 474 ; see Morris v Doe , 104 AD3d 921 ).
cited Cited "see" Garda v. Paramount Theatre, LLC
N.Y. App. Div. · 2016 · signal: see · confidence high
Co. of N.Y., 98 NY2d 314, 326 [2002]; see Nunez v Mohamed, 104 AD3d 921, 922 [2013]).
cited Cited "see" Borawski v. State of New York
N.Y. App. Div. · 2015 · signal: see · confidence high
“No one factor is deemed controlling, nor is the presence or absence of any one factor determinative” (Qing Liu v City Univ. of N.Y., 262 AD2d 473, 474 [1999]; see Morris v Doe, 104 AD3d 921 [2013]).
discussed Cited "see" Sposato v. Paboojian
N.Y. App. Div. · 2013 · signal: see · confidence high
Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Nunez v Mohamed, 104 AD3d 921, 922 [2013…
discussed Cited "see" Sposato v. Paboojian
N.Y. App. Div. · 2013 · signal: see · confidence high
Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Nunez v Mohamed, 104 AD3d 921, 922 [2013…
discussed Cited "see" Constructamax, Inc. v. Weber
N.Y. App. Div. · 2013 · signal: see · confidence high
Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Nunez v Mohamed, 104 AD3d 921 [2013]; Ra…
discussed Cited "see" Constructamax, Inc. v. Weber
N.Y. App. Div. · 2013 · signal: see · confidence high
Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Nunez v Mohamed, 104 AD3d 921 [2013]; Ra…
cited Cited "see, e.g." Vasquez v. City of New York
N.Y. Sup. Ct., New York Cty. · 2024 · signal: see also · confidence medium
Auth., 50 AD3d 1013, 1014 [2d Dept 2008][intemal quotation marks and citation omitted]; see also Nunez v Mohamed, 104 AD3d 921, 922 [2d Dept 2013]).
discussed Cited "see, e.g." South Bay Cardiovascular Associates, P.C. v. SCS Agency, Inc.
N.Y. App. Div. · 2013 · signal: see also · confidence low
Additionally, where the insured relied on the expertise of the agent, or there was a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on, the agent could be found to have a duty to advise because of a special relationship with the insured (see Murphy v Kuhn, 90 NY2d 266, 272-273 [1997]; see also Nunez v Mohamed, 104 AD3d 921 [2013]; Axis Constr.
discussed Cited "see, e.g." South Bay Cardiovascular Associates, P.C. v. SCS Agency, Inc.
N.Y. App. Div. · 2013 · signal: see also · confidence low
Additionally, where the insured relied on the expertise of the agent, or there was a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on, the agent could be found to have a duty to advise because of a special relationship with the insured (see Murphy v Kuhn, 90 NY2d 266, 272-273 [1997]; see also Nunez v Mohamed, 104 AD3d 921 [2013]; Axis Constr.
Retrieving the full opinion text from the archive…
Ericka C. Nunez
v.
Shameer Mohamed, and Hamida Mohamed, Defendant/Third-Party Plaintiff-Respondent. Oliver C. McNicholas, Third-Party , Third-Party
Appellate Division of the Supreme Court of the State of New York.
Mar 27, 2013.
104 A.D.3d 921
Cited by 18 opinions  |  Published

In an action to recover damages for personal injuries, the third-party defendant Oliver C. McNicholas appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J), dated April 13, 2012, as denied those branches of his motion which were to dismiss the third-party complaint insofar as asserted against him pursuant to CPLR 3211 (a) or, alternatively, pursuant to CPLR 3211 (c) and 3212 for summary judgment dismissing the third-party complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

[*922] A motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of NY., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Wild Oaks, LLC v Joseph A. Beehan, Jr. Gen. Contr., Inc., 77 AD3d 924 [2010]; Roth v R & P Rest. Corp., 68 AD3d 961 [2009]). Here, the documentary evidence submitted by the appellant failed to satisfy this standard. Accordingly, the Supreme Court properly denied that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the third-party complaint insofar as asserted against him.

“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810 [2011]; see Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d 585, 586 [2011]). The defendant third-party plaintiff alleged in the third-party complaint that the appellant had been her insurance broker for more than 19 years and that she relied on him to maintain the proper insurance for her property. She also averred in her affidavit in opposition to the subject motion that one of the appellant’s employees assured her that although one of the insurance companies would be unable to provide general liability coverage for the subject property, the appellant would procure the requested coverage from another carrier. Since the appellant failed to show that these material facts alleged by the defendant third-party plaintiff were not facts at all and failed to demonstrate that no significant dispute exists regarding these allegations, the appellant was not entitled to dismissal of the third-party complaint insofar as asserted against him pursuant to CPLR 3211 (a) (7) (see Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d at 586).

The appellant’s remaining contentions are either without merit or improperly raised for the first time on appeal. Skelos, J.E, Leventhal, Austin and Sgroi, JJ., concur.