Practice point: The Appellate Division affirmed the dismissal of the causes of
action to recover damages for fraud, breach of fiduciary duty, and
negligence pursuant to CPLR 3211(a)(1). The defendants' documentary evidence included forms signed by or on behalf of the plaintiffs that contained
specific disclaimer provisions, pursuant to which the plaintiffs
expressly acknowledged that the defendants were not authorized to
provide tax advice, and that they would not rely on any such advice
provided. These forms conclusively established the defendants' defense
to the claims.
Student note: A motion to dismiss a complaint
based on documentary evidence, pursuant to CPLR 3211(a)(1), may be granted
only if the documentary evidence submitted by the moving party utterly
refutes the factual allegations of the complaint and conclusively
establishes a defense to the claims as a matter of law.
Case: Air & Power Transmission, Inc. v. Weingast, NY Slip Op 05757 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: The statute of frauds and a subscribed memorandum.
