You are here: / / Requirements for Motion to Dismiss on Documentary Evidence
,

Requirements for Motion to Dismiss on Documentary Evidence

In this case, the Second Department addressed the proof requirements for a CPLR 3211(a)(1) motion (motion to dismiss on documentary evidence), the potential validity of an unsigned agreement in the context of such a motion, and the proper remedy when a referee exceeds his or her authority:

A motion pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, although [defendant] offered documentary proof that the loan reinstatement agreement was not signed…, this proof does not conclusively dispose of the plaintiff’s specific performance or breach of contract claims since an unsigned agreement may constitute an enforceable contract where there is objective evidence establishing that the parties intended to be bound …. We further note that since [defendant] sought dismissal of the specific performance and breach of contract causes of action pursuant to CPLR 3211(a)(1) on the ground that it had a defense founded on documentary evidence, the motion should have been decided solely on the documentary evidence proffered in support of the motion. …. Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

 

You might also like
DEFENDANT’S FEIGNED ISSUE OF FACT DID NOT RAISE A QUESTION OF FACT IN THE PEDESTRIAN TRAFFIC ACCIDENT CASE (SECOND DEPT).
Unambiguous Release Standing Alone Warrants Summary Judgment
ADEQUATE SUPERVISION OF PLAINTIFF AFTER SURGERY RESULTING IN MEMORY LOSS WAS PART OF PLAINTIFF’S TREATMENT, THEREFORE A CAUSE OF ACTION RESULTING FROM PLAINTIFF’S LEAVING THE HOSPITAL SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, ALTHOUGH PARTIALLY GRANTED, SHOULD HAVE BEEN GRANTED IN ITS ENTIRETY (SECOND DEPT).
DEFENDANT DID NOT OFFER A REASONABLE EXCUSE FOR FAILING TO TIMELY ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6);QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY.
EMAILS INADVERTENTLY PROVIDED TO PLAINTIFF WERE NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, SUPREME COURT SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER (SECOND DEPT).
APPLICATION FOR LEAVE TO SERVE LATE NOTICES OF CLAIM SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED.
IN THIS SLIP AND FALL CASE, EVIDENCE THE AREA WHERE PLAINTIFF FELL WAS INSPECTED “MORE THAN AN HOUR” BEFORE AND EVIDENCE OTHERS WERE IN THE AREA AT THE TIME OF THE FALL DID NOT ELIMINATE QUESTIONS OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Remedy When Referee Exceeds Authority Unpleaded Cause of Action Can Be Raised in Opposition to Summary Judgment—Must...