| Vaughns v Kirkland |
| 2011 NY Slip Op 05048 [85 AD3d 770] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Andrea Vaughns, Respondent, v Michael Kirkland,Appellant. |
—[*1] Michael S. Lamonsoff, New York, N.Y. (Ryan J. Lawlor of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Kings County (Lewis, J.), entered November 12, 2010, whichdenied his motion, inter alia, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
"A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the 'documentaryevidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff'sclaim' " (Fontanetta v John Doe 1,73 AD3d 78, 83-84 [2010], quoting Fortis Fin. Servs. v Fimat Futures USA, 290AD2d 383, 383 [2002]). Here, the defendant has not met that burden.
While "documents reflecting out-of-court transactions such as . . . contracts,and any other papers" qualify as documentary evidence (Fontanetta v John Doe 1, 73AD3d at 84-85), here, the defendant failed to establish, as a matter of law, that an allegedout-of-court, prelitigation settlement agreement was binding on the plaintiff (see generally Williams v Marvin Windows& Doors, 15 AD3d 393 [2005]; Malarkey v Piel, 7 AD3d 681 [2004]; Laruccia v Forchelli,Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321 [2002]). A determination ofwhether the settlement agreement was binding on the plaintiff would have been premature at thisearly stage, and inappropriate in the context of a CPLR 3211 motion.
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendant's motion, inter alia, in effect,pursuant to CPLR 3211 (a) (1) to dismiss the complaint. Covello, J.P., Eng, Leventhal andCohen, JJ., concur.