Commercial Division Blog

Posted: January 17, 2020 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

E-mails and Unsigned Documents Not Documentary Evidence Under CPLR 3211(a)(1)

On December 18, 2019, the Second Department issued a decision in S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 2019 NY Slip Op. 09049, holding that emails and unsigned documents were not documentary evidence under CPLR 3211(a)(1), explaining:

On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference. A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The evidence submitted in support of such motion must be documentary or the motion must be denied.

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable. 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, would qualify as documentary evidence in the proper case. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1).

Here, the emails and the unsigned documents relied on by the Supreme Court to conclude that the LOI was an unenforceable agreement to agree were not essentially undeniable, and did not constitute documentary evidence. Furthermore, the LOI itself contained all the essential elements of a lease, including the area to be leased, the duration of the lease, and the price to be paid. Moreover, nothing in the LOI stated that it was not binding, and its language did not conclusively establish that the parties did not intend to be bound by it. Accordingly, the court should have denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

(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. Many cases have held that 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.