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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 23, 2020

Court Denies 3211(a)(1) Motion to Dismiss Based on E-mails

On February 4, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Fosshage v. Mitta Water Holdings, LLC, 2020 NY Slip Op. 30296(U), denying a 3211(a)(1) motion based on e-mails, explaining:

The Stockholder defendants argue that the complaint should be dismissed based upon unambiguous email evidence. According to the Stockholder defendants, Mark Fosshage not only knew that Mitta and Reddy were associated with the Stockholder defendants, but also actively solicited investments from Mitta and Reddy.

. . .

Emails can suffice as documentary evidence for purposes of CPLR 3211(a)(1).

Nevertheless, the court finds that the emails relied upon by the Shareholder defendants do not resolve all factual issues as a matter of law. The complaint alleges that unbeknownst to the plaintiffs, Prashant Mitta or MWH, also invested in Think. The complaint further alleges that Mitta and Reddy secretly invested in Tura in connection with the Series C stock purchase. Contrary to the Stockholder defendants’ contention, the September 23, 2012 email does not indicate that MWH invested in Think. Even if the November 30, 2012 email shows that Reddy invested in Tura, it does not appear to refer to Mitta’s investment in Tura. In sum, the documentary evidence does not utterly refute plaintiffs factual allegations, and does not conclusively establish a defense as a matter of law. Accordingly, the branch of the Stockholder defendants’ motion seeking dismissal of plaintiffs’ claims concerning the Series B-2 transaction based upon documentary evidence is denied.

(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 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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