| JP Morgan Chase Bank, N.A. v Balliraj |
| 2014 NY Slip Op 00484 [113 AD3d 821] |
| January 29, 2014 |
| Appellate Division, Second Department |
| JP Morgan Chase Bank, N.A.,Respondent, v Nirmala Balliraj et al., Appellants. (Action No. 1.) ResidentialFunding Company, LLC, Respondent, v Nirmala Balliraj et al., Appellants. (Action No.2.) |
—[*1] Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), forrespondent.
In related actions, inter alia, to reform a mortgage and deed, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Rockland County(Berliner, J.), dated June 11, 2012, as denied that branch of their cross motion which wasto dismiss the complaint in action No. 2 pursuant to CPLR 3211 (a) (1) and, in effect,denied that branch of their cross motion which was to dismiss the complaint in actionNo. 2 pursuant to CPLR 3211 (a) (4).
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss pursuant to CPLR 3211 (a) (1) "may be appropriately grantedonly where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins.Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83,88 [1994]; Paramount Transp.Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520 [2010]; Shaya B. Pac., LLC v Wilson,Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38 [2006]). Thedeposition testimony relied upon by the defendants in support of this branch of theircross motion does not constitute "documentary evidence" within the meaning of CPLR3211 (a) (1) (see Fontanetta vJohn Doe 1, 73 AD3d 78, 86 [2010]). Further, contrary to the defendants'contention, the other documentary evidence upon which they rely does not conclusivelyestablish that the plaintiff in action No. 2, Residential Funding Company, LLC, lacksstanding.
The Supreme Court providently exercised its discretion by, in effect, denying thatbranch of the defendants' cross motion which was to dismiss the complaint in action No.2 pursuant to CPLR 3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731, 732[1982]; Morgan Barrington Fin.Servs., Inc. v Nahzi, 85 AD3d 1135 [2011]; DAIJ, Inc. v Roth, 85 AD3d 959 [2011]; Liebert v TIAA-CREF, 34AD3d 756, 757 [2006]).[*2]
The defendants' remaining contentions arewithout merit. Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.