| Suchmacher v Manana Grocery |
| 2010 NY Slip Op 04359 [73 AD3d 1017] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Albert Suchmacher et al., Respondents, v Manana Groceryet al., Defendants, and Carmen Webb, Appellant. |
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In an action to recover damages for personal injuries, etc., the defendant Carmen Webbappeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated July 28,2009, which denied her motion pursuant to CPLR 3211 (a) (1) to dismiss the amended complaintinsofar as asserted against her.
Ordered that the order is affirmed, with costs.
A CPLR 3211 (a) (1) motion to dismiss based on documentary evidence may beappropriately granted "only where the documentary evidence utterly refutes plaintiff's factualallegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual LifeIns. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88[1994]; Fontanetta v John Doe 1, 73 AD3d 78 [2010]; Lucia v Goldman, 68 AD3d 1064[2009]; Elm Sea Realty Corp. vChicoy, 68 AD3d 1047 [2009]; Schwarz Supply Source v Redi Bag USA, LLC, 64 AD3d 696[2009]). Although documents such as deeds, which reflect out-of-court transactions and areessentially unassailable, qualify as "documentary evidence" within the intended scope of CPLR3211 (a) (1), affidavits and deposition testimony do not (see Fontanetta v John Doe 1, 73AD3d 78 [2010]).
Here, even if a 1995 deed by which the appellant transferred, to her son, the title of thepremises at which the subject accident allegedly occurred were sufficient to conclusivelyestablish that the appellant did not own the premises on the date of the accident, the appellantfailed to offer any qualifying documentary evidence to refute the plaintiffs' allegation that she"operated, managed and controlled" the premises. Accordingly, the Supreme Court properlydenied the appellant's motion pursuant to CPLR 3211 (a) (1) to dismiss the amended complaintinsofar as asserted against her (see Fontanetta v John Doe 1, 73 AD3d 78 [2010]; Lucia v Goldman, 68 AD3d 1064[2009]; Elm Sea Realty Corp. vChicoy, 68 AD3d 1047 [2009]; Schwarz Supply Source v Redi Bag USA, LLC, 64 AD3d 696[2009]). Dillon, J.P., Miller, Dickerson and Chambers, JJ., concur.