Commercial Litigation and Arbitration

Dismissal Standards in New York State Court — CPLR 3211(a)(7) (Failure to State a Claim) and 3211(a)(1) (Documentary Evidence) — Affidavits May Cure Pleading Deficiencies — What Constitutes “Documentary Evidence”

From MBIA Ins. Corp. v Royal Bank of Canada, 28 Misc. 3d 1225A, 2010 N.Y. Misc. LEXIS 3958, 2010 NY Slip Op 51490U (Sup. Ct. Westchester County Aug. 19, 2010):

The legal standards to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action ***. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152, 773 N.E.2d 496, 746 N.Y.S.2d 131 [2002]***). The court's function is to "accept … each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'" (***219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509, 387 N.E.2d 1205, 414 N.Y.S.2d 889 [1979]). The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference (511 West 232nd Owners Corp., supra).

Where the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (Leon v Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]***). On the other hand, a plaintiff may rest upon the matter asserted within the four corners of the complaint and need not make an evidentiary showing by submitting affidavits in support of the complaint. A plaintiff is at liberty to stand on the pleading alone and, if the allegations are sufficient to state all of the necessary elements of a cognizable cause of action, will not be penalized for not making an evidentiary showing in support of the complaint (Kempf v Magida, 37 AD3d 763, 832 N.Y.S.2d 47 [2d Dept 2007]; see also Rovello v Orofino Realty Co., 40 NY2d 633, 635-636, 357 N.E.2d 970, 389 N.Y.S.2d 314 [1976]).

Affidavits may be used to preserve inartfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading (***Tsimerman v Janoff, 40 AD3d 242, 835 N.Y.S.2d 146 [1st Dept 2007]). Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action (Taylor v Pulvers, Pulvers, Thompson & Kuttner, P.C. , 1 AD3d 128, 766 N.Y.S.2d 430 [1st Dept 2003]***).

*** Here, because Plaintiffs did not offer any evidentiary affidavits, the Court will treat Plaintiffs as having elected to stand on their pleading alone. However, Plaintiffs did produce documentary evidence to counter Defendants' motion to dismiss pursuant to CPLR 3211(a)(1).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence, the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (AG Cap. Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 590-591, 842 N.E.2d 471, 808 N.Y.S.2d 573 [2005]; 511 West 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 152, 773 N.E.2d 496, 746 N.Y.S.2d 131 [2002]; Held v Kaufman, 91 NY2d 425, 430-431, 694 N.E.2d 430, 671 N.Y.S.2d 429 [1998]; Leon v Martinez, 84 NY2d 83, 88, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]***. To qualify as "documentary," the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts. Letters, affidavits, notes, and deposition transcripts are generally not documentary***.

If the documentary evidence disproves an essential allegation of the complaint, dismissal is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action***.To the extent that Plaintiffs' claims turn on a contract, the actual provisions of the contract — rather than Plaintiffs' characterization of the terms in their pleading — are controlling (see 805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451, 448 N.E.2d 445, 461 N.Y.S.2d 778 [1983]; Marosu Realty Corp. v Community Preserv. Corp. , 26 AD3d 74, 82, 808 N.Y.S.2d 628 [1st Dept 2005]). Therefore, "[w]here a written contract … unambiguously contradicts the allegations supporting the breach of contract, the contract itself constitutes the documentary evidence warranting the dismissal of the complaint under CPLR 3211(a)(1)" (159 Broadway NY Assocs. L.P. v Bodner, 14 A.D.3d 1, 784 N.Y.S.2d 63 [1st Dept 2004]; see also Taussig v Clipper Group, L.P., 13 AD3d 166, 167, 787 N.Y.S.2d 10 [1st Dept 2004], lv denied 4 N.Y.3d 707, 829 N.E.2d 673, 796 N.Y.S.2d 580 [2005] [on a CPLR 3211(a)(1) motion to dismiss, "[t]he interpretation of an unambiguous contract is a question of law for the court, and the provisions of a contract addressing the rights of the parties will prevail over the allegations in a complaint"]).

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