| Cives Corp. v George A. Fuller Co., Inc. |
| 2012 NY Slip Op 05607 [97 AD3d 713] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Cives Corporation, Appellant, v George A. FullerCompany, Inc., Defendant, and Liberty Mutual Insurance Company,Respondent. |
—[*1] Wolff & Samson, P.C., New York, N.Y. (Andrew S. Kent of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Westchester County (Loehr, J.), entered April 25, 2011, whichgranted the motion of the defendant Liberty Mutual Insurance Company pursuant to CPLR 3211(a) (1) to dismiss the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantLiberty Mutual Insurance Company pursuant to CPLR 3211 (a) (1) to dismiss the complaintinsofar as asserted against it is denied.
The defendant George A. Fuller Company, Inc. (hereinafter Fuller), was the generalcontractor on a construction project known as the Concord Hotel & Casino-Retail-EventCenter-Ballroom, located in Kiamesha Lake (hereinafter the Project). The plaintiff contractedwith Fuller to provide labor and materials for the Project. The defendant Liberty MutualInsurance Company (hereinafter Liberty) allegedly issued a payment bond in connection with theProject.
After supplying labor and materials for the Project, the plaintiff submitted invoices to Fullerin the amount of $8,952,294, but Fuller allegedly failed to pay the invoices. The plaintiff thensubmitted a claim to Liberty for payment under the payment bond, but Liberty refused to pay theclaim. The plaintiff then commenced this action, inter alia, to recover damages for Liberty'sbreach of its obligations under the payment bond. It attached a copy of Liberty's alleged paymentbond to its summons and complaint.
Liberty moved pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as assertedagainst it, arguing that the bond had no legal effect. It claimed that it had only released the bondto Fuller to be held in escrow subject to certain conditions in an escrow agreement, that thoseconditions had never been met and, thus, the bond had never been released from escrow, neverbecome effective, and was returned to it by Fuller. To establish the existence of the escrowagreement and the fact that the terms of the agreement were never met, Liberty submitted, interalia, various letters and emails. The Supreme Court granted Liberty's motion. The plaintiffappeals and [*2]we reverse.
"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, 73AD3d 78, 83 [2010] [internal quotation marks omitted]; see Reid v Gateway Sherman, Inc., 60 AD3d 836, 837 [2009]). Theevidence submitted in support of such motion must be " 'documentary' " or the motion must bedenied (Fontanetta v John Doe 1, 73 AD3d at 84, quoting Siegel, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 22). In order for evidencesubmitted under a CPLR 3211 (a) (1) motion to qualify as "documentary evidence," it must be"unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996,996-997 [2010] [internal quotation marks omitted]). "[J]udicial records, as well as documentsreflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, thecontents of which are essentially undeniable, would qualify as documentary evidence in theproper case" (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marksomitted]). At the same time, "[n]either affidavits, deposition testimony, nor letters are considereddocumentary evidence within the intendment of CPLR 3211 (a) (1)" (Granada CondominiumIII Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v Manana Grocery, 73AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 86).
Here, the letters and emails submitted by Liberty did not constitute "documentary evidence"under CPLR 3211 (a) (1) and, thus, should not have been considered by the Supreme Court (see Integrated Constr. Servs., Inc. vScottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Granada Condominium III Assn. vPalomino, 78 AD3d at 997; Weil,Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271[2004]). Without these materials, Liberty did not establish the existence of the escrow agreementor the fact that the terms of the agreement were never met. Accordingly, the Supreme Court erredin granting Liberty's motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar asasserted against it. Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.