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Posted: October 29, 2013

Documentary Evidence Refutes Allegation that Defendant was Party to Contract

On October 16, 2013, the Second Department issued a decision in Kalmon Dolgin Affiliates, Inc. v. Tonacchio, 2013 NY Slip Op. 06660, illustrating the importance of the documentary evidence prong of a motion to dismiss and its usefulness in dismissing a claim at the beginning of an action. In Kalmon Dolgin, the Second Department partially reversed an opinion by Justice Schmidt of the Kings County Commercial Division, holding that he should have granted a motion to dismiss based on documentary evidence establishing that the signatory to the contract was not actually binding his corporate affiliates to the agreement upon which they were being sued. The Second Department wrote:

Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), the focus of the inquiry turns from whether the complaint states a cause of action to whether the plaintiff actually has one. Here, the Supreme Court should have granted that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against Katan and 267. The evidentiary material submitted by the moving defendants demonstrated that the plaintiff’s allegation that it had entered into the letter agreement with Katan was “not a fact at all.” Specifically, the moving defendants’ submissions conclusively demonstrated that Katan was not a signatory to the letter agreement, and that 267 was not referenced in that agreement. Since the moving defendants established that neither Katan nor 267 were signatories to the letter agreement, Katan and 267 cannot be bound by it. Although the plaintiff alleged in an affidavit submitted by its president in opposition to the moving defendants’ motion that it was led to believe that Tonacchio was a managing member of 267 and an officer, director, or shareholder of Noreast, and that Tonacchio was authorized to bind all parties to the letter agreement, there is nothing in the letter agreement to suggest that, in signing it, Tonacchio was also binding 267 or Katan to the terms of the letter agreement.

(Citations and internal quotations omitted).

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