Commercial Division Blog

Posted: July 1, 2018 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Court Rejects Unsigned Agreement Offered as Documentary Evidence Under 3211(a)(1)

On June 18, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Taurus Petroleum Ltd. v. Global Emerging Markets North America, Inc., 2018 NY Slip Op. 31264(U), rejecting an unsigned agreement offered as documentary evidence under CPLR 3211(a)(1), explaining:

To succeed on a motion to dismiss pursuant to CPLR § 3211(a)(1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiffs claims. A motion to dismiss pursuant to CPLR § 3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law.

The facts as alleged in the complaint are regarded as true, and the plaintiff is afforded the benefit of every favorable inference. Allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration. 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 presented documentary evidence is an unsigned, unauthenticated draft of the 2014 loan agreement between Taurus and non-party GEM Resources International, Inc. While Faye cites to Naturopathic Labs. Intern., Inc. v SSL Americas, Inc. (18 AD3d 404 [1st Dept 2005]), for the premise that an unsigned agreement may constitute documentary evidence, no information is provided in that case to clarify what made that unsigned document reliable.

Faye also attaches news articles, affidavits, and letters, none of which are undisputed or conclusively establish a defense. Accordingly, the portion of the motion to dismiss based on documentary evidence fails.

(Internal quotations and citations omitted).

This decision relates to the New York procedural rules allowing a claim to be dismissed if it is refuted by documentary evidence (CPLR 3211(a)(1)). As this decision notes, documentary evidence does not mean just any kind of document. But as it also notes, the law is "fuzzy" on when a document can be used as documentary evidence under 3211(a)(1). Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding whether a claim against you can be refuted at the pleadings stage by documentary evidence.