| 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co. |
| 2015 NY Slip Op 02958 [127 AD3d 850] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| 25-01 Newkirk Avenue, LLC,Appellant, v Everest National Insurance Company,Respondent. |
Mark L. Cortegiano, Middle Village, N.Y., for appellant.
Carroll McNulty & Kull, LLC, New York, N.Y. (Denise M. Marra of counsel),for respondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated todefend and indemnify the plaintiff in an underlying personal injury action entitledMichel v 25-01 Newkirk Ave., LLC, pending in the Supreme Court, KingsCounty, under index No. 8871/12, the plaintiff appeals from an order of the SupremeCourt, Kings County (Silber, J.), dated March 6, 2014, which granted the defendant'smotion pursuant to CPLR 3211 (a) (1) to dismiss the complaint and for a declaration thatit is not obligated to defend or indemnify the plaintiff in the underlying action.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionis denied.
The defendant issued a general liability policy covering an apartment building ownedby the plaintiff (hereinafter the premises). In an underlying personal injury action, theplaintiff was sued by a former tenant who allegedly sustained injury from lead exposurewhile residing at the premises. The plaintiff advised the defendant of the claim, and thedefendant disclaimed coverage, invoking a lead exclusion it had added to the policy afterthe plaintiff failed to perform lead testing at the premises pursuant to an allegedagreement between the parties. The plaintiff then commenced this action, inter alia, for ajudgment declaring that the defendant was obligated to defend and indemnify it in theunderlying action, arguing that the addition of the lead exclusion to the policy wasinvalid. The defendant moved pursuant to CPLR 3211 (a) (1) to dismiss the complaintbased on a defense founded upon documentary evidence and for a judgment declaringthat it is not obligated to defend or indemnify the plaintiff in the underlying action. TheSupreme Court granted the motion. We reverse.
"A motion pursuant to CPLR 3211 (a) (1) to dismiss based on documentary evidencemay be appropriately granted 'only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter oflaw' " (YDRA, LLC vMitchell, 123 AD3d 1113, 1113 [2014], quoting Goshen v Mutual Life Ins.Co. of N.Y., 98 NY2d 314, 326 [2002]; see Whitebox Concentrated Convertible Arbitrage Partners, L.P. vSuperior Well Servs., Inc., 20 NY3d 59, 63 [2012]; [*2]Tooma v Grossbarth, 121 AD3d 1093, 1094-1095[2014]; Biro v Roth, 121AD3d 733, 734 [2014]). "In order for evidence submitted under a CPLR 3211 (a)(1) motion to qualify as 'documentary evidence,' it must be 'unambiguous, authentic, andundeniable' " (CivesCorp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Granada Condominium III Assn. vPalomino, 78 AD3d 996, 996-997 [2010]; see Treeline 1 OCR, LLC v Nassau County Indus. Dev.Agency, 82 AD3d 748, 752 [2011]). "It is clear that judicial records, as well asdocuments reflecting out-of-court transactions such as mortgages, deeds, contracts, andany other papers, the contents of which are 'essentially undeniable,' would qualify as'documentary evidence' in the proper case" (Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010],quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book7B, CPLR C3211:10 at 21-22). Conversely, letters, emails, and affidavits fail to meet therequirements for documentary evidence (see Attias v Costiera, 120 AD3d 1281, 1283 [2014];Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Fontanetta v JohnDoe 1, 73 AD3d at 87).
Here, the evidence submitted by the defendant in support of the motion either did notconstitute documentary evidence within the meaning of CPLR 3211 (a) (1), or failed toutterly refute the plaintiff's allegations or conclusively establish a defense as a matter oflaw, particularly with regard to whether the plaintiff was obligated to perform leadtesting at the premises and whether the lead exclusion was validly added to the policy (see generally Indymac Venture,LLC v Nagessar, 121 AD3d 945 [2014]; Biro v Roth, 121 AD3d 733 [2014]; Attias v Costiera, 120 AD3d1281, 1283 [2014]). Accordingly, the Supreme Court should have denied thedefendant's motion. Mastro, J.P., Austin, Cohen and Barros, JJ., concur.