Brunot v. Joe Eisenberger & Co.

266 A.D.2d 421, 698 N.Y.S.2d 882, 1999 N.Y. App. Div. LEXIS 12045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Joe Eisenberger & Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated May 18, 1999, as denied its motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs to the plaintiff-respondent.

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), 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 (see, Scadura v Robillard, 256 AD2d 567; Leon v Martinez, 84 NY2d 83, 87-88; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460). Here, the documentary evidence submitted by the defendant in support of its motion failed to meet that burden. Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.