Practice point: A defendant may move for judgment dismissing
a cause of action on the ground that a defense is founded upon documentary
evidence, pursuant to CPLR 3211[a][1]. The motion may be granted only where the
documentary evidence utterly refutes plaintiff's factual allegations,
conclusively establishing a defense as a matter of law.
Student note:
Materials that clearly qualify as documentary evidence include documents
reflecting out-of-court transactions such as mortgages, deeds, contracts, and
any other papers, the contents of which are essentially undeniable.
Case: Sands Point Partners Private Client Group v. Fidelity Natl. Tit. Ins. Co., NY Slip Op
07097 (2d Dept. 2012).
Tuesday's issue: Liquidated damages provisions.
