| Flowers v 73rd Townhouse LLC |
| 2012 NY Slip Op 06635 [99 AD3d 431] |
| October 4, 2012 |
| Appellate Division, First Department |
| J. Christopher Flowers, Appellant, v 73rd Townhouse LLCet al., Respondents. |
—[*1] Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 27, 2011,which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law,without costs, and the motion denied.
The documentary evidence submitted on the motion—namely, checks from the LawOffices of Milton S. Rinzler to certain defendants—failed to show conclusively thatplaintiff's claims were time-barred. The affidavits submitted by defendants were not"documentary evidence" within the meaning of CPLR 3211 (a) (1) (see e.g. Granada Condominium III Assn. vPalomino, 78 AD3d 996, 997 [2d Dept 2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-86 [2d Dept 2010]), andwithout the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC madedistributions that were protected by the statute of limitations in Limited Liability Company Law§ 508 (c).
On appeal, defendants argue only the statute of limitations. Accordingly, they haveabandoned so much of their motion as was based on CPLR 3211 (a) (7).Concur—Gonzalez, P.J., Saxe, DeGrasse, Freedman and Román, JJ.