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Criteria for a Motion to Dismiss Based Upon Documentary Evidence and a Motion to Dismiss Supported by Submitted Evidence Explained (Not Met Here)

In finding defendant’s motion to dismiss the complaint was properly denied, the Second Department explained the criteria for a motion to dismiss based upon documentary evidence, and for a motion to dismiss accompanied by the submission of evidence. The court noted that affidavits, deposition testimony and letters do not constitute “documentary evidence” in this context:

A party may move for judgment dismissing one or more causes of action asserted against it under CPLR 3211(a)(1) “on the ground that . . . a defense is founded upon documentary evidence.” A motion on this ground, however, “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence’ within the intendment of CPLR 3211(a)(1)” … . …

… A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties … . Moreover, “[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … . Shofel v DaGrossa, 2015 NY Slip Op 08156, 2nd Dept 11-12-15

 

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