Zeld Associates, Inc. v. Marcario

57 A.D.3d 660, 868 N.Y.2d 317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2008
• Status: Published

Opinion

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the motion of the defendants Marien R. Marcario, Allen T. Swezey, and Julee E. Amsler (hereinafter collectively the defendants) which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them. A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where documentary evidence utterly refutes the complaint’s 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]; Leon v Martinez, 84 NY2d 83, 88 [1994]). Here, the defendants, who agreed to sell the subject real property to the plaintiff, utterly refuted the complaint’s factual allegations and conclusively established a defense as a matter of law by submitting certain documentary evidence establishing that they properly cancelled the contract for the sale of the property (cf. Manzi Homes, Inc. v Mooney, 29 AD3d 748, 749 [2006]; Oak Bee Corp. v Blankman & Co., 154 AD2d 3, 7-9 [1990]).

The plaintiffs remaining contentions either are without merit or have been rendered academic in light of our determination. Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.