PLAINTIFF’S VERIFIED COMPLAINT WAS NOT ‘DOCUMENTARY EVIDENCE’ WITHIN THE MEANING OF CPLR 3211, DEFENDANT’S MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED BASED UPON ALLEGATIONS IN PLAINTIFF’S VERIFIED COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s verified complaint in this prescriptive easement action was not “documentary evidence” within the meaning of CPLR 3211 (a)(1) and therefore could not be the basis for granting defendant’s motion to dismiss:

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” … . “Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deed, contracts, and any other papers, the contents of which are essentially undeniable” … . Also, as relevant here, “[a] party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … .

Supreme Court, in granting defendant’s motion to dismiss, relied solely on plaintiffs’ verified complaint in which they admitted that, during the period of time that the right-of-way has been used by their patrons, plaintiffs were aware that defendant owned the subject property … . Accordingly, the court found that this knowledge rebutted the element of hostility and, as such, voided a necessary element of establishing a prescriptive easement. Although a complaint serves the important purpose of setting forth the plaintiff’s allegations, we do not find that it is “so essentially undeniable as to qualify as documentary evidence that conclusively refutes any claim that [a] plaintiff might have” … . Further, in a motion to dismiss pursuant to CPLR 3211, a “court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference” … ; therefore, the complaint cannot also conclusively refute itself, which is what Supreme Court attempted to do here. Koziatek v SJB Dev. Inc., 2019 NY Slip Op 03419, Third Dept 5-2-19