Morales v. 78 4th Avenue Corp.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the Supreme Court properly concluded, the documentary evidence submitted by the defendants in support of their cross motion to dismiss does not establish their defense as a matter of law or definitely dispose of the allegations in the complaint. Accordingly, the Supreme Court properly denied the defendants’ cross motion to dismiss the complaint. Mastro, J.E, Miller, Balkin and McCarthy, JJ., concur.