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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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ANY GROUND FOR A DISCLAIMER NOT MENTIONED IN THE DISCLAIMER LETTER IS WAIVED.
DEFENDANT SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER; IN ADDITION TO DEFENDANT’S MEETING THE CRITERIA, THE PEOPLE APPARENTLY LOST EXCULPATORY EVIDENCE BEFORE OFFERING A PLEA DEAL (SECOND DEPT).
PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT).
A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.
DEFENDANT ASKED PLAINTIFF TO WIRE THE LOAN PROCEEDS TO A BANK IN NEW YORK; NEW YORK THEREFORE HAD JURISDICTION, PURSUANT TO CPLR 302, OVER THIS BREACH OF CONTRACT ACTION STEMMING FROM DEFENDANT’S ALLEGED FAILURE TO REPAY THE LOAN (SECOND DEPT).
STATUTE OF LIMITATIONS STARTED TO RUN IN THE FIRST FORECLOSURE PROCEEDING WHEN THE DEBT WAS ACCELERATED, THE ELECTION TO ACCELERATE WAS NEVER REVOKED, THE INSTANT FORECLOSURE ACTION IS TIME-BARRED.
THE INSURER DID NOT EXPLAIN ITS FAILURE TO TIMELY REQUEST THAT THE INSURED UNDERGO A PHYSICAL EXAM AND AN EXAMINATION UNDER OATH; THE STAY OF ARBITRATION IN THIS UNINSURED MOTORIST BENEFITS DISPUTE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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