Cywiak v. Packman

Opinion

Cywiak v Packman

2026 NY Slip Op 05276

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Michael Maier Cywiak, appellant,

v

Michal Packman, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2023-03545, (Index No. 63937/22)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Deborah A. Dowling

Susan Quirk, JJ.

Mark A. Guterman, White Plains, NY, for appellant.

Miller Zeiderman LLP, White Plains, NY (Lisa E. Zeiderman, Andrew Perez, and Benjamin E. Schub of counsel), for respondent.

[*1]

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Thomas Quinones, J.), dated March 27, 2023. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and denied the plaintiff's cross-motion to vacate a stipulation dated March 2, 2017.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In August 2022, the plaintiff commenced this action for a divorce and ancillary relief, alleging that the parties were lawfully married in a religious ceremony in New Jersey in 2012. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint and pursuant to 22 NYCRR 130-1.1 for an award of attorneys' fees and costs and the imposition of sanctions against the plaintiff. The defendant contended, inter alia, that dismissal was warranted pursuant to CPLR 3211(a)(1), as documentary evidence established that the parties were not married. In support of the motion, the defendant submitted, among other things, a stipulation between the parties dated March 2, 2017 (hereinafter the stipulation), in which the plaintiff stipulated to withdraw, with prejudice, a prior action for divorce that he had commenced in 2016. The stipulation bore a stamp indicating that it had been filed with the Chief Clerk of the Westchester County Supreme and County Courts on March 8, 2017. In the stipulation, the parties agreed "that they had a ceremonial wedding on August 9, 2012, but at no time have they entered into a valid civil contract of marriage with one another in New York, or in any other State or jurisdiction."

The plaintiff cross-moved to vacate the stipulation. In an order dated March 27, 2023, the Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the documentary evidence established that the parties were not married. The court denied the plaintiff's cross-motion and that branch of the defendant's motion which was pursuant to 22 NYCRR 130-1.1 for the imposition of sanctions against the plaintiff, and, in effect, denied, with leave to renew, that branch of the defendant's motion which was pursuant to 22 NYCRR 130-1.1 for an award of attorneys' fees and costs. The plaintiff appeals.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may only be granted where the documentary evidence [*2]utterly refutes the factual allegations in the complaint, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88). "To qualify as documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions, including mortgage agreements, deeds, contracts, and any other papers, the contents of which essentially are undeniable" (Aguilar v Wishner, 244 AD3d 1033, 1034; see Yan Ping Xu v Van Zwienen, 212 AD3d 872, 874). "Neither affidavits, deposition testimony, nor letters are considered 'documentary evidence' within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997; see Phillips v Taco Bell Corp., 152 AD3d 806, 807).

Contrary to the plaintiff's contention, the stipulation ending the prior divorce action, which was signed by both parties and filed with the court (see CPLR 2104), constituted documentary evidence within the intendment of CPLR 3211(a)(1) (see Etzion v Etzion, 138 AD3d 678, 682; Baker v Inamdar, 99 AD3d 742, 744; see also Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757). Further, that documentary evidence utterly refuted the plaintiff's allegations that the parties were married, thereby warranting dismissal of the complaint pursuant to CPLR 3211(a)(1). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

The Supreme Court also properly denied the plaintiff's cross-motion to vacate the stipulation, as the plaintiff established no basis to vacate or set aside the stipulation.

The plaintiff contends that the Supreme Court erred in granting that branch of the defendant's motion which was pursuant to 22 NYCRR 130-1.1 for the imposition of sanctions against the plaintiff. In the order appealed from, however, the court denied that branch of the motion.

The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court