Opinion
2018–00566 Index No. 608574/17
10-28-2020
BIG BLUE PRODUCTS, INC., appellant, v. Joseph ARLIA, respondent, et al., defendants.
Nixon Peabody LLP, New York, N.Y. (Daniel A. Schnapp of counsel), for appellant.
Nixon Peabody LLP, New York, N.Y. (Daniel A. Schnapp of counsel), for appellant.
CHERYL E. CHAMBERS, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered December 8, 2017. The order granted the motion of the defendant Joseph Arlia pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Joseph Arlia pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him is denied.
The plaintiff commenced this action to recover damages, inter alia, for breach of contract against the defendants Joseph Arlia and Ticketwish Inc., doing business as eCommerce Sales Consultants (hereinafter eCommerce), among others. The complaint alleged that the plaintiff had entered into a binding contractual agreement with Arlia and eCommerce to provide technical consulting advice regarding the plaintiff's web-based e-commerce system and that the defendants breached that agreement.
Arlia moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him, contending that, although he is a principal of eCommerce, he had no contractual relationship with the plaintiff in his individual capacity. In support of his motion, Arlia submitted his own affidavit, copies of numerous invoices billed to the plaintiff by eCommerce, and multiple checks issued by the plaintiff made payable to eCommerce. By order entered December 8, 2017, the Supreme Court granted Arlia's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him. The plaintiff appeals. We reverse.
"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" ( Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 677, 60 N.Y.S.3d 294, citing Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). Affidavits, deposition testimony, and letters are not considered documentary evidence within the intendment of CPLR 3211(a)(1) (see Fox Paine & Co., LLC, 153 A.D.3d at 678, 60 N.Y.S.3d 294 ; Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 ). "In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable" ( Fox Paine & Co., LLC, 153 A.D.3d at 677–678, 60 N.Y.S.3d 294, citing Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 996–997, 913 N.Y.S.2d 668 ).
Here, the affidavit submitted by Arlia is not "documentary evidence" within the meaning of CPLR 3211(a)(1) and should not have been considered by the Supreme Court in determining Arlia's motion (see Hartnagel v. FTW Contr., 147 A.D.3d 819, 821, 47 N.Y.S.3d 96 ; Flushing Sav. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 809, 941 N.Y.S.2d 719 ). To the extent that the other documents submitted by Arlia may constitute documentary evidence since the plaintiff did not dispute the authenticity of the same, such invoices and checks did not utterly refute the factual allegations of the complaint and did not conclusively establish the lack of a contractual agreement between the plaintiff and Arlia in his individual capacity (see Furman v. Wells Fargo Home Mtge., Inc., 105 A.D.3d 807, 809–810, 964 N.Y.S.2d 169 ). Arlia's submissions also did not conclusively establish a defense to the causes of action sounding in quasi contract and common-law negligence (see Soller v. Dahan, 173 A.D.3d 803, 805–806, 102 N.Y.S.3d 715 ; Aponte v. Estate of Aponte, 172 A.D.3d 970, 974–975, 101 N.Y.S.3d 132 ).
Accordingly, Arlia's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him should have been denied.
CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur.