Practice point: A motion to dismiss relying on documentary evidence must utterly refute plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.
Students should note that the reasonableness of notice is not an issue that lends itself to determination on a CPLR 3211 motion.
Case: DKR Soundshore Oasis Holding v. Merrill Lynch Intl., NY Slip Op 00036 (1st Dept. 2011)
Here is the decision.
Tomorrow’s issue: Motion practice.
