Dismissal based on documentary evidence.

Practice point: A party seeking dismissal pursuant to CPLR 3211(a)(1), on the ground that its defense is founded upon documentary evidence, has the burden of resolving all factual issues as a matter of law, and conclusively disposing of the plaintiff's claim.

Student note: Affidavits do not constitute documentary evidence for the purposes of the motion to dismiss.

Case: Flushing Sav. Bank v. Siunykalami, NY Slip Op 02629 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bus injury cases.