2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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decide whether the plaintiff has a cause of action, rather than whether one has been stated. Stinner v Epstein, 162 AD3d 819,
820 (2d Dept 2018). If that evidence disproves a requisite allegation of the claim, the claim must
be dismissed despite the fact that the allegations, by themselves, are adequate to resist a motion
to dismiss. Id. Dismissal in that circumstance is permitted only when the evidence
establishes that the material fact alleged by plaintiff is not really a fact, "and no significant
dispute exists regarding it." Id.; see also Guggenheimer v Ginzberg, 43 NY2d
268, 274-275 (1977). When considering a motion pursuant to CPLR 3211 (a) (7), the court can
consider evidence which a plaintiff has submitted to remedy a complaint's defects, since the
salient issue on such an application "is whether the proponent of the pleading has a cause of
action, not whether he has stated one." Leon v Martinez, 84 NY2d 83, 88 (1984) (internal
quotation marks and citations omitted).

"A motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1) may be
appropriately granted 'only where the documentary evidence utterly refutes plaintiff's factual
allegations, conclusively establishing a defense as a matter of law' (Goshen v Mutual Life Ins.
Co. of NY, 98 NY2d 314, 326 [2002]; see Norment v Interfaith Ctr. of NY, 98 AD3d 955, 955-956
[2012]).' " North Shore Towers Apts.
Inc. v Three Towers Assoc., 104 AD3d 825, 827 (2d [*10]Dept 2013). Documents which are, in essence, indisputable
constitute documentary evidence under the statute. Fontanetta v John Doe 1, 73 AD3d 78, 84-85 (2d Dept 2010).
Deposition transcripts, affidavits, and trial testimony are not documentary evidence, but judicial