Affidavit With E-mails and Account Analysis Not Documentary Evidence

On June 13, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in New York Budget Inn LLC v. Averbuch, 2017 NY Slip Op. 31296(U), denying a motion to dismiss based on documentary evidence, explaining:

To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1), the documentary evidence that forms the basis of the defense must resolve all factual issues and definitively dispose of the plaintiffs claims. A motion to dismiss pursuant to CPLR § 3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The facts as alleged in the complaint are regarded as true, and the plaintiff is afforded the benefit of every favorable inference. Allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.

CPLR § 3211 (a) (1) does not explicitly define documentary evidence. As used in this statutory provision, documentary evidence is a fuzzy term, and what is documentary evidence for one purpose, might not be documentary evidence for another. To be considered documentary, evidence must be unambiguous and of undisputed authenticity. Typically that means judicial records such as judgments and orders, as well as documents reflecting out-of-court transactions such as contracts, releases, deeds, wills, mortgages and any other papers, the contents of which are essentially undeniable. As noted, the Entities rely on the affidavit of Joshua Klapper, NYBI's accountant. The affidavit and its attachments consisting of emails and an account analysis, are not the type of essentially undeniable documents which can support a motion to dismiss and they do not flatly contradict Averbuch's assertions. Accordingly, the portion of the motion seeking dismissal of Count 9 is denied.

(Internal quotations and citations omitted).