| Morales v 78 4th Ave. Corp. |
| 2008 NY Slip Op 09968 [57 AD3d 748] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Ana Iris Carpio Morales et al., Respondents, v 78 4th AvenueCorp. et al., Appellants. |
—[*1] Phillips Nizer, LLP, New York, N.Y. (Daniel M. Kolko and Peter W. Smith of counsel), forrespondents.
In an action, inter alia, to set aside a deed conveying real property, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), datedNovember 14, 2007, as denied their cross motion pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint based on documentary evidence.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) "may be appropriately grantedonly where the documentary evidence utterly refutes plaintiff's factual allegations, conclusivelyestablishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliatesof Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the Supreme Court properlyconcluded, the documentary evidence submitted by the defendants in support of their cross motion todismiss does not establish their defense as a matter of law or definitely dispose of the allegations in thecomplaint. Accordingly, the Supreme Court properly denied the defendants' cross motion to dismiss thecomplaint. Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.