A motion to dismiss the complaint on the ground of documentary evidence may only be granted where the evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, The defendant bears the burden of demonstrating that the proffered evidence conclusively refutes the plaintiff's factual allegations. In order to be considered "documentary," the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.
Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, NY Slip Op 04597 (2d Dep't August 4, 2021)
Tomorrow's issue: CPLR 308(5).
