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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

 

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