Motions to dismiss.

A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. in order to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that there is no significant dispute exists regarding it, dismissal should not be granted.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay, NY Slip Op[ 03399 (2d Dep't June 20, 2024)

Here is the decision.

Vacatur.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court.  In determining whether there is a reasonable excuse, a court should consider all the relevant factors, including the extent of the delay, prejudice to the opposing party, whether the default was willful, and the strong public policy in favor of resolving cases on the merits.

Here, the defendant's excuse that he believed that the attorney representing him in separate litigation was addressing this action was unreasonable. Mere neglect is not a reasonable excuse. Likewise, his conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse.

American Cancer Socy., Inc. v. Ashby, NY Slip Op 03398 (2d Dep't June 20, 2024)

Here is the decision.