Affidavits and Text Messages Do Not Constitute “Documentary Evidence” In the Context of a Motion to Dismiss Pursuant to CPLR 3211(a)(1)

The Second Department determined defendant’s motion to dismiss the breach of contract complaint should have been denied. The affidavits and text messages submitted in support of the motion did not constitute “documentary evidence” upon which a motion to dismiss may be based. The court defined “documentary evidence” in this context:

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” … . “[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” … . However, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … .

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not ” essentially undeniable,'” and did not constitute documentary evidence … . Eisner v Cusumano Constr., Inc., 2015 NY Slip Op 07812, 2nd Dept 10-28-15