section 3211(a) documentary evidence in New York

2026Co. of N.Y. , 98 NY2d 314, 326). "[C]ontracts may qualify as documentary evidence within the meaning of CPLR 3211(a)(1)" ( McDonald v O'Connor , 189 AD3d 1208, 1210).

2026Co. of N.Y. , 98 NY2d 314, 326 ). "[C]ontracts may qualify as documentary evidence within the meaning of CPLR 3211(a)(1)" ( McDonald v O'Connor , 189 AD3d 1208, 1210 ).

2025"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to 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" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076 , 1077). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" ( Fontanetta v John Doe 1 , 73 AD3d 78, 86 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any othe

2025After reviewing the MOAs pertaining to the Pike Plan canopies — which constitute documentary evidence within the meaning of CPLR 3211 (a) (1) ( see Fontanetta v John Doe 1 , 73 AD3d 78, 84-85 [2d Dept 2010]; David D.

2025I will follow up." The Motion Where the motion to dismiss is based on documentary evidence under CPLR 3211 (a)(1), the claim will be dismissed only "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( M & E 73-75, LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020] citing Leon v Martinez , 84 NY2d 83, 88 [1994]) "In considering the documents offered by the movant to negate the claims in the complaint, a court must adhere to the concept that the allegations in the complaint are presumed to be true, and that the pleading is entitl

2025As for Agoda's motion to dismiss, the terms of use constitute documentary evidence under CPLR 3211(a)(1), and the limitation of liability clause in the terms of use definitively disposes of plaintiff's claim to recover damages from Agoda for personal injury caused by the resort's alleged negligence ( see Leon v Martinez, 84 NY2d 83, 88 [1994]).

2026"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins.

2026"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847 ; see Goshen v Mutual Life Ins.

2016"A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’ ” (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see GuideOne Specialty Ins.

2010“A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim’ ” (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see GuideOne Specialty Ins.

2026Moreover, "[w]hen 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 question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Domitz v City of Long Beach , 187 AD3d 853, 855 [internal quotation marks omitted]; see Margarita v Mountain T

2025"A [*2]motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue" ( id. [citations and internal quotation marks omitted]; see First Korean Church of N.Y. v 35 Ave & Parsons, LLC , 221 AD3d 971, 972 ; Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908 ; Yue Fung USA Enters., Inc. v Novelty Crystal Corp. , 105 AD3d 840 , 841).

2026"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" ( Maursky v Latham , 219 AD3d 473, 475 [internal quotation marks omitted]; see Goshen v Mutual Life Ins.

2026"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" ( Maursky v Latham , 219 AD3d 473, 475 [internal quotation marks omitted]; see Goshen v Mutual Life Ins.

2016"A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’ ” (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see GuideOne Specialty Ins.

2010“A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim’ ” (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]; see GuideOne Specialty Ins.

2013To be considered documentary evidence within the meaning of CPLR 3211 (a) (1), the evidence must be unambiguous and of undisputed authenticity (see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955 [2012]; Parekh v Cain, 96 AD3d at 815 ; Flushing Sav.

2013To be considered documentary evidence within the meaning of CPLR 3211 (a) (1), the evidence must be unambiguous and of undisputed authenticity (see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955 [2012]; Parekh v Cain, 96 AD3d at 815 ; Flushing Sav.

2020Here, the affidavit of the defendant Domenico Pinto does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Granada Condominium III Assn. v Palomino , 78 AD3d at 997 ; Fontanetta v John Doe 1 , 73 AD3d at 85 ), and the defendants' other evidentiary submissions were insufficient to utterly refute the plaintiff's factual allegations ( see Hartnagel v FTW Contr. , 147 AD3d 819, 821 ; Suchmacher v Manana Grocery , 73 AD3d 1017, 1017-1018 ).

2018The evidence submitted by the ballpark defendants with respect to SMLP, SEI, and SEA did not constitute documentary evidence under CPLR 3211(a)(1) and, thus, did not provide a basis for dismissal under that subsection ( see Jones v Rochdale Vil., Inc., 96 AD3d at 1017; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 ; Suchmacher v Manana Grocery, 73 AD3d 1017 ).

2025DISCUSSION Where a motion to dismiss is based on documentary evidence under CPLR 3211 (a) (1), the claim will be dismissed only "if the documentary evidence submitted conclusively [*3]establishes a defense to the asserted claims as a matter of law" ( M & E 73-75, LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020]).

2025DISCUSSION Where a motion to dismiss is based on documentary evidence under CPLR 3211 (a) (1), the claim will be dismissed only "if the documentary evidence submitted conclusively [*3]establishes a defense to the asserted claims as a matter of law" ( M & E 73-75, LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020]).

2020To qualify as documentary evidence within the meaning of CPLR 3211(a)(1), the evidence "must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" ( Rabos v R & R Bagels & Bakery, Inc. , 100 AD3d 849 , 851 [citation and internal quotation marks omitted]).

2016Co. of N.Y., 98 NY2d 314, 326 [2002]; see Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849 , 851 [2012]; Norment v Interfaith Ctr. of N.Y., 98 AD3d 955 , 955 [2012]).

2026Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal citation and quotation marks omitted]; see also VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189 , 193 [1st Dept 2019] [holding that evidence qualifies as documentary evidence within the meaning of CPLR § 3211 (a) (1) only if it is unambiguous, undeniable, and of undisputed authenticity]).

2016The motion court properly found that the Second Circuit’s order in Optical II, affirming Optical I, is documentary evidence within the meaning of CPLR 3211 (a) (1), and that its holding flatly contradicts the legal conclusions and factual allegations in the complaint (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014]; Morgenthow & Latham v Bank of N.Y.

2015“To be considered documentary evidence within the meaning of CPLR 3211 (a) *675 (1), the evidence must be unambiguous and of undisputed authenticity” (Yue Fung USA Enters., Inc. v Novelty Crystal Corp., 105 AD3d at 841-842; see Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747 [2011]).

2013Bank, FSB v Siunykalimi, 94 AD3d 807, 808 [2012]; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747 [2011]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]).

2026"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to 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" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077; see Goshen v Mutual Life Ins.

2026"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to 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" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077; see Goshen v Mutual Life Ins.

2025Here, in addition to unsuccessfully raising the defense of usury with respect to the promissory note, the defendant relied on a "Gift Letter," which did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Cives Corp. v George A. Fuller Co., Inc. , 97 AD3d 713, 714 ; Granada Condominium III Assn. v Palomino , 78 AD3d 996 ).

2025Here, in addition to unsuccessfully raising the defense of usury with respect to the promissory note, the defendant relied on a "Gift Letter," which did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Cives Corp. v George A. Fuller Co., Inc. , 97 AD3d 713, 714; Granada Condominium III Assn. v Palomino , 78 AD3d 996).

2026An unambiguous, expired contract which qualifies as documentary evidence pursuant to CPLR § 3211 (a) (1) -- insulates defendants from liability on a breach of contract cause of action, because "the criterion is whether the [plaintiff] has a cause of action, not whether [plaintiff has] stated one" (Guggenheimer, 43 NY2d at 275 [1977]).

2023Additionally, the evidence submitted by the Village in support of the motion either was not documentary evidence within the meaning of CPLR 3211(a)(1), did not resolve all factual issues as a matter of law, or did not conclusively establish that a material fact as claimed by the petitioners was not a fact at all and that no significant dispute exists regarding it ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275 ; Hogue v Village of Dering Harbor , 199 AD3d 900 , 902; Brannigan v Christie Overhead Door , 149 AD3d 892, 893 ).

2025Here, the affidavit submitted by the defendants in support of their motion does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Davis v Henry , 212 AD3d at 598 ; Phillips v Taco Bell Corp. , 152 AD3d 806, 807 ).

2025"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to 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" ( Davis v Henry , 212 AD3d 597, 597 [internal quotation marks omitted]; see Goshen v Mutual Life Ins.

2026"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" ( Leader v Steinway, Inc. , 180 AD3d 886, 887 [internal quotation marks omitted]).

2024The letters, emails, and affirmation of the defendant's principal submitted by the defendant in support of its motion were not documentary evidence within the meaning of CPLR 3211(a)(1) ( see Leader v Steinway, Inc. , 180 AD3d 886, 888 ; Shah v Mitra , 171 AD3d at 973).

2024The affidavit does not constitute documentary evidence under CPLR 3211(a)(1) ( Mamoon v Dot Net Inc. , 135 AD3d 656, 657 [1st Dept 2016]), nor does the affidavit utterly refute the claims.

2024The affidavit does not constitute documentary evidence under CPLR 3211(a)(1) ( Mamoon v Dot Net Inc. , 135 AD3d 656, 657 [1st Dept 2016]), nor does the affidavit utterly refute the claims.

2025"A [*2]motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue" ( id. [citations and internal quotation marks omitted]; see First Korean Church of N.Y. v 35 Ave & Parsons, LLC , 221 AD3d 971, 972 ; Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908 ; Yue Fung USA Enters., Inc. v Novelty Crystal Corp. , 105 AD3d 840 , 841).

2025"A [*2]motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue" ( id. [citations and internal quotation marks omitted]; see First Korean Church of N.Y. v 35 Ave & Parsons, LLC , 221 AD3d 971, 972 ; Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908 ; Yue Fung USA Enters., Inc. v Novelty Crystal Corp. , 105 AD3d 840 , 841).

2023However, these items do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) in this case, as the contents thereof can be controverted by other evidence ( see Xu v Van Zwienen , 212 AD3d at 874 ; Hartnagel v FTW Contr. , 147 AD3d at 821 ).

2020Here, the affidavit of the defendant Domenico Pinto does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Granada Condominium III Assn. v Palomino , 78 AD3d at 997 ; Fontanetta v John Doe 1 , 73 AD3d at 85 ), and the defendants' other evidentiary submissions were insufficient to utterly refute the plaintiff's factual allegations ( see Hartnagel v FTW Contr. , 147 AD3d 819, 821 ; Suchmacher v Manana Grocery , 73 AD3d 1017, 1017-1018 ).

2022In any event, the parties' purported course of dealing is reflected only in a self-serving affidavit from defendant's employee, and it well established that affidavits do "not constitute documentary evidence within the meaning of CPLR 3211 (a) (1)" ( Attias v Costiera , 120 AD3d 1281, 1283 [2d Dept 2014]; see Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1563 [4th Dept 2021]; Phillips v Taco Bell Corp. , 152 AD3d 806, 807 [2d Dept 2017]).

2018Here, many of the materials submitted by Unity in an effort to establish that Unity and Liberty were not obligated to defend and indemnify the County in the underlying action did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Attias v Costiera , 120 AD3d 1281 ).

2025Here, the affidavit submitted by the defendants in support of their motion does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) ( see Davis v Henry , 212 AD3d at 598 ; Phillips v Taco Bell Corp. , 152 AD3d 806, 807 ).

2025Here, Kukiela's affidavit was not documentary within the meaning of CPLR 3211(a)(1) and should not have been considered as such ( see Churong Liu v Gabbay , 219 AD3d 459, 461 ; Phillips v Taco Bell Corp. , 152 AD3d 806, 807 ).

2025As an initial matter, the defendants each failed to establish that an insurance form proffered by them constituted documentary evidence within the meaning of CPLR 3211(a)(1) ( see Saadia v National Socy. of Hebrew Day Schs., Inc. , 225 AD3d at 808; Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874 ).

2023However, these items do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) in this case, as the contents thereof can be controverted by other evidence ( see Xu v Van Zwienen , 212 AD3d at 874 ; Hartnagel v FTW Contr. , 147 AD3d at 821 ).

2024Portia's managing agent's affidavit in support of its pre-answer motion to dismiss does not constitute documentary evidence under CPLR 3211(a)(1) that conclusively established a defense to plaintiff's amended complaint ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]; Celentano v Boo Realty, LLC , 160 AD3d 576 , 577 [1st Dept 2018]; Flowers v 73rd Townhouse LLC , 99 AD3d 431, 431 [1st Dept 2012]).

2024Portia's managing agent's affidavit in support of its pre-answer motion to dismiss does not constitute documentary evidence under CPLR 3211(a)(1) that conclusively established a defense to plaintiff's amended complaint ( see Correa v Orient-Express Hotels, Inc. , 84 AD3d 651, 651 [1st Dept 2011]; Celentano v Boo Realty, LLC , 160 AD3d 576 , 577 [1st Dept 2018]; Flowers v 73rd Townhouse LLC , 99 AD3d 431, 431 [1st Dept 2012]).

2020Dist. , 147 AD3d 1112, 1113 ), the contract and the other documentary evidence submitted in support of the moving defendants' motion do not conclusively establish that, together, the sellers were able to convey title in the real property at issue.

2019Dist. , 147 AD3d 1112, 1113 [internal quotation marks omitted]; see Goshen v Mutual Life Ins.

2026Co. of NY, 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]). "[T]o be considered documentary, evidence must be unambiguous and of undisputed authenticity" ( Fontanetta v John Doe 1 , 73 AD3d 78, 86 [2d Dept 2010] [internal quotation marks omitted]; Minchala v 829 Jefferson, LLC , 177 AD3d 866 , 867 [2d Dept 2019]). "[J]udicial 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, would qualify as documentary evidence in the proper case" ( Fontanetta v

2026Co. of NY, 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]). "[T]o be considered documentary, evidence must be unambiguous and of undisputed authenticity" ( Fontanetta v John Doe 1 , 73 AD3d 78, 86 [2d Dept 2010] [internal quotation marks omitted]; Minchala v 829 Jefferson, LLC , 177 AD3d 866, 867 [2d Dept 2019]). "[J]udicial 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, would qualify as documentary evidence in the proper case" ( Fontanetta v.