Commercial Division Blog

Posted: February 8, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Motion to Dismiss; Motion for Judgment on the Pleadings

Correspondence Not "Documentary Evidence" When Its Contents Are Not "Essentially Undeniable"

On January 20, 2023, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision in American Challenger Development Corp. v. Credit Suisse AG, Cayman Islands Branch, 2023 NY Slip Op 30219(U), holding that a "Termination Notice" was not "documentary evidence" under C.P.L.R. 3211(a)(1) because its contents were not "essentially undeniable," explaining:

The motion to dismiss plaintiff's breach of contract claim is denied. Plaintiff has adequately pled breach of the Purchase Agreement. Of particular importance are the allegations contained in the Complaint that the necessary internal approvals contained in section 8(b)(B) of [**2] the Purchase Agreement were in fact obtained. Cmplt. at P33-36, [*2] 42, 44. There are questions of fact regarding the purported condition precedent and whether the internal approvals were indeed obtained as alleged which are inappropriate for resolution at the instant stage.

Defendants rely upon a Termination Notice sent by defendants to plaintiff to support their claim that the internal approvals were not obtained. NYSCEF Doc. No. 13. However, the Termination Notice does not constitute "documentary evidence" for the purposes of a CPLR 3211(a)(1) motion. While correspondences may be considered documentary evidence, they must pass the "essentially undeniable" test. See Fontanetta v. Doe, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 (2d Dept. 2010) (holding that, for a paper to be considered 'documentary evidence' pursuant to CPLR 3211(a)(1), the paper must be (1) unambiguous, (2) of undeniable authenticity, and (3) its contents are essentially undeniable). The Termination Notice fails this test because the issue of whether the internal approvals were obtained is a core factual dispute in this case, thus the contents of the letter are not "essentially undeniable."

In state practice, a defendant may move to dismiss a claim based on "documentary evidence" that is outside the pleading. Here, while the court recognized that correspondence may be documentary evidence, the court held that the contents of the correspondence at issue were not "essentially undeniable," and so the correspondence itself was not documentary evidence. Contact the Commercial Division Blog Committee at if you or a client have questions concerning what constitutes "documentary evidence" on a motion to dismiss.