Letters, Affidavits and Transcripts Not 3211(a)(1) Documentary Evidence

On August 16, 2017, the Second Department issued a decision in Fox Paine & Co., LLC v. Houston Casualty Co., 2017 NY Slip Op. 06162, holding that proffered evidence was insufficient to support a motion to dismiss, explaining:

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable. Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1). Accordingly, the letters from the attorney and claims services relied upon by Houston Casualty do not constitute documentary evidence for the purposes of CPLR 3211(a)(1). Additionally, the insurance policy, which does constitute documentary evidence, did not utterly refute the factual allegations of the complaint and did not conclusively establish a defense to the claims as a matter of law.

(Internal quotations omitted).