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Court Finds Documentary Evidence Utterly Refutes Tenant’s Claim For Damages

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  • Posted on: Aug 12 2019

In New York, Section 3211(a) of the Civil Practice Law and Rules (“CPLR”) provides the primary mechanism by which a party can make a motion, before a responsive pleading, to dismiss one or more causes of action alleged against that party. A “cause of action” subject to dismissal under CPLR § 3211(a), includes counterclaims, cross-claims, and third-party claims.

There are several grounds under CPLR § 3211(a) on which a party may move to dismiss.  These include (but are not limited to) the following: (1) documentary evidence; (2) lack of subject matter jurisdiction; (3) lack of capacity; (4) another action pending between the same parties for the same cause of action in another court; (5) disposition in a prior proceeding; (6) improper counterclaim; (7) failure to state a cause of action; (8) lack of personal jurisdiction; (9) improper extra-jurisdictional service; (10) failure to join necessary party; and (11) immunity for voluntary non-profit officers.

Although in most cases, the moving party invokes more than one of the foregoing bases for his/her motion, the movant may base his/her motion solely upon the existence of documentary evidence. Dismissal under CPLR § 3211(a)(1) is a unique feature of New York motion practice. 

Under CPLR § 3211(a), a party may make a motion to dismiss on the “ground that . . . a defense is founded upon documentary evidence.” The CPLR does not, however, define the phrase “documentary evidence.” For this reason, courts described the phrase as “fuzzy” because “what is documentary evidence for one purpose, might not be documentary evidence for another.” Fontanetta v. Doe, 73 A.D.3d 78, 84 (2d Dept. 2010).

To qualify as “documentary,” the content of the document must be “essentially undeniable and …, assuming the verity of [the paper] and the validity of its execution, will itself support the ground on which the motion is based.” Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assocs., Inc., 120 A.D.3d 431, 432 (1st Dept. 2014), quoting David D. Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C.P.L.R. C3211:10 at 22. Materials that clearly qualify as “documentary evidence” include judicial records, such as judgments and orders, as well as documents reflecting out of-court transactions, such as contracts, deeds, wills, and mortgages. Fontanetta, 73 A.D.3d at 84-85 (citation omitted). Relevant to today’s post, a valid lease may qualify as “documentary evidence” within the meaning of CPLR § 3211(a)(1). Sunset Cafe, Inc. v. Mett’s Surf & Sports Corp., 103 A.D.3d 707, 709 (2d. Dept. 2013). Thus, in order for evidence to qualify as “documentary,” it must be unambiguous, authentic and undeniable.” Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996-997 (2d Dept. 2010).

In the Second Department, affidavits, emails, and letters, are not considered documentary evidence “within the intendment of CPLR 3211(a)(1).” Phoenix Grantor Trust v. Exclusive Hospitality, LLC, 2019 N.Y. Slip Op. 3635 (2d Dept. May 8, 2019), quoting Nero v. Fiore, 165 A.D.3d 823, 826 (2d Dept. 2018). In the First Department, like the Second Department, affidavits are not documentary evidence within the meaning of CPLR § 3211(a)(1). Tsimerman v. Janoff, 40 A.D.3d 242 (1st Dept. 2007). However, unlike in the Second Department, the First Department will consider correspondence and emails “under appropriate circumstances” to qualify as documentary evidence, so long as they meet “the essentially undeniable test.” Amsterdam Hospitality Grp., 120 A.D.3d at 432; Langer v Dadabhoy, 44 A.D.3d 425 (1st Dept. 2007).

A motion to dismiss under CPLR § 3211(a)(1) requires the court “to accept the complaint’s factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory.” Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 270 (1st Dept. 2004). Dismissal is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002)), and “conclusively establishes a defense to the asserted claims as a matter of law.” Weil, Gotshal, 10 A.D.3d at 270-271 (internal quotation marks omitted). In other words, the documents relied upon must “definitely dispose of [the] plaintiff’s claim.” Blonder & Co. v. Citibank, N.A., 28 A.D.3d 180, 182 (1st Dept. 2006).

On August 5, 2019, Justice Robert Reed of the Supreme Court, New York County, dismissed a damages action brought by a commercial tenant against its landlord on the basis of documentary evidence. Abigael’s on Broadway Inc. v. Shorenstein Realty Servs., LP., 2019 N.Y. Slip Op. 32357(U) (Sup. Ct., N.Y. County Aug. 5, 2019) (here). As discussed below, Justice Reed held that the plain and unambiguous terms of the lease between the parties mandated dismissal of the action.

Plaintiff, Abigael’s on Broadway, Inc., a commercial tenant, commenced the action against Defendant, SRI Eleven 1407 Broadway Operator, LLC (“SRI”), its landlord, for, inter alia, damages allegedly caused by Defendant’s renovation and remodeling of the subject building. 

In or about April 2016, Defendant began a capital improvement project to update and modernize the building (the “Project”). The Project included the renovation of the tenants’ spaces, including the portion of the building leased by Plaintiff, and the building’s lobby and exterior facade. 

On October 18, 2017, Plaintiff filed the action, asserting six causes of action against SRI, the first two of which were for breach of contract and lost profits and business. 

Defendant moved to dismiss under CPLR §§ 3211(a)(1) and 3211(a)(7), claiming that Plaintiff’s first and second causes of action for lost business and profits should be dismissed as contradicted by the express terms of the lease between the parties. The Court granted the motion.

Under the lease, noted the Court, the landlord is specifically exculpated from liability “arising from the making of any repairs, alterations, additions or improvements in or to any portion of the building or the premises ….” Slip Op. at *2. The Court explained:

The first and second causes of action are expressly barred by paragraphs 7 and 19 of the lease. In this court’s reading, the language of paragraph 7 is unambiguous: “there shall be no liability on part of Landlord by reason of … injury tobusiness arising from the making of any repairs, alterations, additions or improvements in or to any portion of the building or the demised premises” (emphasis added). The rider to paragraph 7 does not contradict the paragraph’s essential point.

Consequently, the Court held that “Plaintiffs first and second causes of action … must be dismissed.” Id. at *3.


As shown in Abigael’s on Broadway, CPLR § 3211(a)(1) can be a powerful tool to secure dismissal of a complaint. While not every document will demonstrate the absence of a cause of action, Abigael’s on Broadway demonstrates that where the document is clear, unambiguous, and undeniable, and “utterly refutes” the claims asserted, dismissal is appropriate.

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