You are here: / / Affidavits and Text Messages Do Not Constitute “Documentary Evidence”...
,

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

 

You might also like
QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).
THE DEFAULTING DEFENDANT WAS DEEMED TO HAVE ADMITTED ALL THE ALLEGATIONS IN THE BREACH-OF-CONTRACT COMPLAINT; THERFORE WHETHER DEFENDANT CAUSED THE DAMAGES SUSTAINED BY PLAINTIFF SHOULD NOT HAVE BEEN CONSIDERED IN THE INQUEST; THE FACT THAT THE AMOUNT OF DAMAGES IS UNCERTAIN DOES NOT JUSTIFY THE FAILURE TO AWARD DAMAGES (SECOND DEPT). ​
Electronic Documents Constitute “Tangible Personal Property” and Can Therefore Be the Subject of a Conversion Cause of Action
Criteria for Determining Motions to Dismiss Affirmative Defenses Explained
DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT).
CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT).
ALTHOUGH THE VILLAGE CODE MADE THE ABUTTING PROPERTY OWNER RESPONSIBLE FOR MAINTAINING THE SIDEWALK, THE CODE DID NOT IMPOSE TORT LIABILITY ON THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Court Not Required to Obtain a New Risk Assessment Instrument After People Filed a Petition for an Upward Modification Based Upon a New Offense Committed In Violation of Defendant’s Probation

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

Failure to Turn Over Impeachment Evidence Re: a Central Prosecution Witness... Implied Definite Term of Duration