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Current Developments in the Commercial Divisions of the
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Posted: March 12, 2018

Purchase Agreement is Documentary Evidence Despite Being Redacted

On February 13, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Siegal v. Pearl Capital Rivis Ventures LLC, 2018 NY Slip Op. 30256(U), holding that a redacted version of a purchase agreement was documentary evidence despite the redactions, explaining:

CPLR 3211(a)(1) does not explicitly define documentary evidence. As used in this statutory provision, documentary evidence is a fuzzy term, and what is documentary evidence for one purpose, might not be documentary evidence for another. To be considered documentary, evidence must be unambiguous and of undisputed authenticity. Typically that means judicial records, 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. Here, the Asset Purchase Agreement constitutes documentary evidence of the fact that Five Hole, and not Capital Z, purchased Pearl Capital in 2015.

Plaintiffs argument that the Asset Purchase Agreement is insufficient since it continues to be redacted is without merit. The Asset Purchase Agreement is of undisputed authenticity, and, unlike the version previously provided, is unambiguous as to the dispositive issue of who, in fact, purchased Pearl Capital. Moreover, even if, as plaintiff suggests, the redacted portions of the Asset Purchase Agreement somehow demonstrated that Capital Z was the true purchaser, for the reasons discussed below, the Asset Purchase Agreement would still defeat plaintiffs claims as to successor liability.

(Internal quotations and citations omitted).

This decision relates to a New York procedural rule allowing a claim to be dismissed if it is refuted by documentary evidence. As this decision notes, there often is disagreement over what constitutes documentary evidence. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether a claim against you can be refuted at the pleadings stage by documentary evidence.

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