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Affidavits, Deposition Testimony, and Letters Are Not Considered “Documentary Evidence” Within the Meaning of CPLR 3211(a)(1)

The Second Department described the types of documents which will not support a motion to dismiss pursuant to CPLR 3211(a)(1):

“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)”… . Contrary to the defendant’s contention, an affidavit by a … project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) … . JA Lee Elec Inc v City of New York, 2014 NY Slip Op 05159, 2nd Dept 7-9-14

 

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QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION.
There Can Be More than One Proximate Cause/Defendants Did Not Establish Freedom from Comparative Fault
A LATE MOTION FOR SUMMARY JUDGMENT SHOULD NOT BE CONSIDERED ON THE MERITS ABSENT GOOD CAUSE FOR THE DELAY (SECOND DEPT). ​
PLAINTIFF FAILED TO SHOW UP FOR THE SETTLEMENT CONFERENCE IN THIS FORECLOSURE ACTION AND A DEFAULT JUDGMENT WAS GRANTED; IN MOVING TO VACATE THE DEFAULT, PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF LAW OFFICE FAILURE AND DID NOT EXPLAIN ITS DELAY IN SEEKING TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).
FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS.
THE EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION, INCLUDING AN ATTORNEY AFFIDAVIT, WAS NOT IN ADMISSIBLE FORM, THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
USE OF ROADWAY BY PEDESTRIANS AND BICYCLISTS MAY SUFFICE TO SHOW A ROADWAY, NOT USED BY VEHICLES, HAS NOT BEEN ABANDONED WITHIN THE MEANING OF THE HIGHWAY LAW.

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