| Attias v Costiera |
| 2014 NY Slip Op 06163 [120 AD3d 1281] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Shlomo Attias, Appellant, v Richard Costiera etal., Respondents. |
Dressler Law LLP, New York, N.Y. (Adam B. Dressler of counsel), forappellant.
Chesney & Nicholas, LLP, Baldwin, N.Y. (Stephen V. Morello of counsel), forrespondents.
In an action to recover damages for breach of a contract for the sale of real propertyand for the return of a down payment given pursuant to that contract, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (Woodard, J.), dated February 13, 2013, as granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint, and deniedthat branch of his cross motion which was pursuant to CPLR 3025 (b) for leave to amendthe verified complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (1)to dismiss the complaint and substituting therefor a provision denying that branch of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff commenced this action to recover a $25,000 down payment pursuant toa contract for the sale of certain real property and $100,000 in damages sustained as aresult of the alleged breach of that contract. The defendants moved to dismiss thecomplaint pursuant to, inter alia, CPLR 3211 (a) (1). In support of their motion, thedefendants submitted, among other things, the contract of sale, their own affidavits, theirattorney's affirmation, and various correspondence between the parties' attorneys. Theplaintiff cross-moved, inter alia, pursuant to CPLR 3025 (b) for leave to amend theverified complaint to add a cause of action against the defendants and to join theirattorney as a party defendant and thereupon assert two causes of action against theattorney. The Supreme Court granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (1) to dismiss the complaint, and denied that branch of theplaintiff's cross motion which was for leave to amend the verified complaint pursuant toCPLR 3025 (b). We modify.
"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to beafforded a liberal construction and the plaintiff's allegations are accepted as true andaccorded the benefit of every possible favorable inference" (Granada Condominium III Assn. vPalomino, 78 AD3d 996, 996 [2010]; see Leon v Martinez, 84 NY2d 83,87 [1994]). A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on theground that a defense is founded on documentary evidence "may be [*2]appropriately granted only where the documentary evidenceutterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as amatter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; see Rodolico v Rubin& Licatesi, P.C., 114 AD3d 923, 924-925 [2014]). "The evidencesubmitted in support of such motion must be documentary or the motion must be denied"(Cives Corp. v George A. FullerCo., Inc., 97 AD3d 713, 714 [2012] [internal quotation marks omitted]; see Fontanetta v John Doe 1,73 AD3d 78, 84 [2010]; see also David D. Siegel, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-23).
In order for evidence submitted in support of a CPLR 3211 (a) (1) motion to qualifyas "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. vPalomino, 78 AD3d 996, 996-997 [2010] [internal quotation marks omitted];see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). "[J]udicialrecords, as well as documents reflecting out-of-court transactions such as mortgages,deeds, contracts, and any other papers, the contents of which are essentially undeniable,would qualify as documentary evidence in the proper case" (Fontanetta v John Doe1, 73 AD3d at 84-85 [internal quotation marks omitted]; see Cives Corp. vGeorge A. Fuller Co., Inc., 97 AD3d at 714). At the same time, "[n]either affidavits,deposition testimony, nor letters are considered documentary evidence within theintendment of CPLR 3211 (a) (1)" (Granada Condominium III Assn. v Palomino,78 AD3d at 997 [internal quotation marks omitted]; see Cives Corp. v George A.Fuller Co., Inc., 97 AD3d at 714; Suchmacher v Manana Grocery, 73 AD3d 1017, 1017[2010]).
Here, the affidavits submitted by the defendants, their attorney's affirmation, and thecorrespondence that was submitted in support of the defendants' motion did notconstitute documentary evidence within the meaning of CPLR 3211 (a) (1), and shouldnot have been relied upon by the Supreme Court in directing the dismissal of thecomplaint pursuant to CPLR 3211 (a) (1) (see Cives Corp. v George A. Fuller Co.,Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 84-85). The onlydocumentary evidence submitted in support of the defendants' motion was the contract ofsale and the rider to the contract of sale. However, these submissions did not "utterlyrefute" the plaintiff's allegations or "conclusively establish[ ] a defense as a matter oflaw" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Rodolicov Rubin & Licatesi, P.C., 114 AD3d at 924-925; JP Morgan Chase Bank, N.A. vBalliraj, 113 AD3d 821, 821 [2014]; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928,930 [2010]). Accordingly, the Supreme Court erred in granting that branch of thedefendants' motion which was to pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint.
However, the Supreme Court providently exercised its discretion in denying thatbranch of the plaintiff's cross motion which was for leave to amend the verifiedcomplaint pursuant to CPLR 3025 (b). "In the absence of prejudice or surprise to theopposing party, leave to amend a pleading should be freely granted unless the proposedamendment is palpably insufficient or patently devoid of merit" (Marcum, LLP v Silva, 117AD3d 917, 917 [2014]; see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d220, 229 [2008]). "The determination to permit or deny amendment is committed tothe sound discretion of the trial court" (Marcum, LLP v Silva, 117 AD3d at 917;see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d at 229).
Here, the plaintiff sought to amend the verified complaint by adding a cause ofaction against the defendants and to join the defendants' attorney as a party defendant andthereupon assert two causes of action against the attorney. Since the plaintiff's proposedamendments were palpably insufficient and patently devoid of merit, the Supreme Courtprovidently exercised its discretion in denying that branch of the plaintiff's cross motion(see generally Longo v Long Is.R.R., 116 AD3d 676 [2014]; Young v Brown, 113 AD3d 761, 762 [2014]). Mastro, J.P.,Dillon, Miller and Maltese, JJ., concur.