Ruby Falls, Inc. v. Ruby Falls Partners, LLC

Appellate Division of the Supreme Court of New York

Ruby Falls, Inc. v. Ruby Falls Partners, LLC

39 A.D.3d 619, 834 N.Y.S.2d 258

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 10, 2007

StatusPublished

Cited by1 cases

This text of 39 A.D.3d 619 (Ruby Falls, Inc. v. Ruby Falls Partners, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ruby Falls, Inc. v. Ruby Falls Partners, LLC, 39 A.D.3d 619, 834 N.Y.S.2d 258 (N.Y. Ct. App. 2007).

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Opinion

In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered September 20, 2006, which granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1).

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) is denied.

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Williams v Williams, 36 AD3d 693 [2007]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006])” (Mendelovitz v Cohen, 37 AD3d 670, 670-671 [2007]). Here, the documentary evidence submitted by the defendant failed to resolve all factual issues as a matter of law and did not conclusively dispose of the plaintiffs claim. Accordingly, the defendant was not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1).

In light of the foregoing, we need not consider the plaintiffs remaining contention. Rivera, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.

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In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered September 20, 2006, which granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1).

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) is denied.

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Williams v Williams, 36 AD3d 693 [2007]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006])” (Mendelovitz v Cohen, 37 AD3d 670, 670-671 [2007]). Here, the documentary evidence submitted by the defendant failed to resolve all factual issues as a matter of law and did not conclusively dispose of the plaintiffs claim. Accordingly, the defendant was not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1).

In light of the foregoing, we need not consider the plaintiffs remaining contention. Rivera, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.

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Bluebook (online)

39 A.D.3d 619, 834 N.Y.S.2d 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruby-falls-inc-v-ruby-falls-partners-llc-nyappdiv-2007.

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