You are here: / / THE MOTION TO DISMISS THE BREACH OF CONTRACT CAUSE OF ACTION BASED ON DOCUMENTARY...
,

THE MOTION TO DISMISS THE BREACH OF CONTRACT CAUSE OF ACTION BASED ON DOCUMENTARY EVIDENCE DID NOT ESTABLISH A DEFENSE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should not have been granted:

… [T]he plaintiff stated a cause of action, in effect, to recover damages for breach of contract based on an alleged breach of the implied covenant of good faith and fair dealing inherent in the parties’ contract . The plaintiff alleged, in effect, that there was an implied understanding that the defendant would cooperate with the plaintiff’s efforts to legally change the usage of the rental space, which would require approval by the DOB, and, therefore, the defendant’s…  failure to cooperate in legalizing the premises constitutes a breach of contract.

“A party seeking dismissal pursuant to CPLR 3211(a)(1) on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim” … . “In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable” … . Here, the evidence submitted by the defendant either was not “documentary” within the meaning of CPLR 3211(a)(1) or failed to conclusively establish a defense to the third cause of action as a matter of law … . Twinkle Play Corp. v Alimar Props., Ltd., 2020 NY Slip Op 04987, Second Dept 9-16-20

 

You might also like
INSTEAD OF DISMISSING THE COMPLAINT FOR FAILURE TO NAME A NECESSARY PARTY SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED (SECOND DEPT).
PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT). ​
PLAINTIFF SOUGHT ONLY CANCELLATION OF A MORTGAGE; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, CANCELLED THE NOTE AS WELL (SECOND DEPT).
NEITHER THE LEVEL OF PLAYGROUND SUPERVISION NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection—Treating Psychiatrist Not Called by Facility
Owner of Land through Which Power Lines Pass Pursuant to a Utility Easement (Servient Owner) Does Not Have a Duty to Maintain the Easement—Servient Owner Not Liable for Damage to Abutting Property Stemming from a Vegetation Fire Started by Sparks from the Power Lines
IN THIS CEILING-COLLAPSE CASE, THE NEGLIGENCE PER SE CAUSE OF ACTION BASED ON THE MULTIPLE DWELLING LAW AND THE RES IPSA LOQUITUR CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
THE CITY CHARTER PROVISION DID NOT PROVIDE FOR NOTICE OF A PENDING TAX FORECLOSURE SALE TO MORTGAGEES AND THEREBY VIOLATED THE MORTGAGEE’S DUE PROCESS RIGHTS IN THIS PROCEEDING; THE MORTGAGEE’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CITY WAS PROPERLY GRANTED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL... PLAINTIFF BANK DID NOT LAY A SUFFICIENT FOUNDATION FOR BUSINESS RECORDS SUBMITTED...