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Failure to Identify a Statement Claimed to Be False and Text Messages as Documentary Evidence

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  • Posted on: May 6 2024

By: Jeffrey M. Haber

In Nosegbe v. Charles, 2024 N.Y. Slip Op. 02406 (4th Dept. May 3, 2024) (here), the Appellate Division, Fourth Department affirmed the dismissal of a fraud claim because the plaintiff failed to identify the statement claimed to be false. The Court also reinstated a claim that the motion court dismissed on the grounds that, inter alia, the text message on which the lower court relied was not documentary evidence within the meaning of CPLR 3211(a)(1). We examine Nosegbe below.

Plaintiff is a dentist who operated a dental practice named Fayetteville Family Dentistry PLLC (“FFD”).1 At some point, plaintiff engaged the services of two management companies to convert FFD into a new practice, Family Smiles Dentistry PLLC (“FSD”). Disagreements arose, leading plaintiff to commence an action against FSD, the two management companies and their principals. While the first action was pending, plaintiff commenced the action before the Court against defendants, who are the former or current principals of FSD. 

Plaintiff alleged in sum and substance that defendants improperly removed her name from the PLLC application for FSD and then misappropriated her property, patient list, business telephone number, and federal tax identification number. Defendants filed a pre-answer motion to dismiss pursuant to CPLR 3211 or, in the alternative, to add FSD as a necessary party or to consolidate the action with the first action. 

The motion court granted the motion insofar as it sought dismissal of the complaint and thus did not address defendants’ requests for alternative relief. Plaintiff appealed. The Fourth Department modified the motion court’s order by denying the motion to the extent that it sought to dismiss the second and fourth causes of action and reinstating those causes of action, and, as modified, affirmed the order.

The Court held that the motion court correctly dismissed plaintiff’s fraud claim (the first cause of action). After reciting the elements of a fraud claim,2 the Court found that “there [were] no allegations [in the complaint] of any material misrepresentation made by either defendant to plaintiff, let alone any misrepresentation that defendants knew was false or that was meant to induce reliance.”3 The Court explained that “it [did] not appear [from the complaint] that plaintiff ever conversed with either defendant about anything until after the events that [were] alleged as the basis of the first cause of action.”4 Accordingly, the Court “conclude[d] that the [motion] court properly granted defendants’ motion with respect to the first cause of action.”5

The Court also held that the motion court erred in dismissing plaintiff’s second and fourth causes of action pursuant to CPLR 3211(a)(1).6 CPLR 3211(a)(1) permits a court to dismiss a cause of action where it is conclusively refuted by documentary evidence. Documents such as text messages “do not meet the requirements for documentary evidence” to support a CPLR 3211(a)(1) motion.7 “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable.”8 

The Court found that the text messages used by defendants did not rise to the level of documentary evidence: “the text messages [did] not even identify the person who [was] communicating with plaintiff. The names and numbers are redacted.”9 

“Moreover,” noted the Court, “the text messages [did] not ‘conclusively establish[ ] a defense as a matter of law’ with respect to the fourth cause of action.”10

Accordingly, to the extent the motion court granted the motion to dismiss the second and fourth causes of action on CPLR 3211(a)(1) grounds, the Court modified the order.


  1. Plaintiff filed the action pro se.
  2. “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff[,] and damages.” Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009).
  3. Slip Op. at *1.
  4. Id.
  5. Id.
  6. Id. at *2-*3.
  7. Id. at *3 (citations omitted).
  8. Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 855-856 (2d Dept. 2021); see Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 942 (2d Dept. 2015); Fontanetta v. John Doe 1, 73 A.D.3d 78, 86 (2d Dept. 2010).
  9. Slip Op. at *3.
  10. Id. (quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); and citing, among other cases, Lots 4 Less Stores, Inc. v. Integrated Props., Inc., 152 A.D.3d 1181, 1183 (4th Dept. 2017)).

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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