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FEDERAL TAX RETURNS AND EMAILS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211 (A)(1); THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a)(1) should not have been granted. Defendants submitted federal income tax returns to demonstrate the amount owed under the contract at issue:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), “the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Further, where a court considers evidentiary material in the context of a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint may only be dismissed when “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 to that no significant dispute exists regarding it” … .

… {The business’s] federal income tax return, submitted by the defendants in support of their motion to dismiss, was insufficient to utterly refute [the] allegation that [the business’s] 2016 profits exceeded the sum reported therein as “ordinary business income,” and to prove that this allegation was “not a fact at all.” Among other things, … the accuracy of the tax return [was disputed] … . While the defendants additionally submitted certain email correspondence … , these emails were not “documentary evidence” within the intendment of CPLR 3211(a)(1) … . Lessin v Piliaskas, 2020 NY Slip Op 06515, Second Dept 11-12-20

 

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