Opinion
2019–13924 Index No. 506617/19
01-11-2023
Meserete DAVIS, appellant, v. Alexis HENRY, defendant, Pelican Management, Inc., respondent.
Gary S. Alweiss (Shayne, Dachs, New York, NY [Jonathan A. Dachs ], of counsel), for appellant. Michael R. Koenig, New Rochelle, NY (Robert Dashow of counsel), for respondent.
Gary S. Alweiss (Shayne, Dachs, New York, NY [Jonathan A. Dachs ], of counsel), for appellant.
Michael R. Koenig, New Rochelle, NY (Robert Dashow of counsel), for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated October 23, 2019. The order granted the motion of the defendant Pelican Management, Inc., pursuant to CPLR 3211(a)(1) to dismiss the amended complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Pelican Management, Inc., pursuant to CPLR 3211(a)(1) to dismiss the amended complaint insofar as asserted against it is denied.
In March 2019, the plaintiff commenced this action against the defendants, Alexis Henry and Pelican Management, Inc. (hereinafter Pelican), to recover damages for personal injuries the plaintiff allegedly sustained in a motor vehicle accident. The plaintiff alleged that her vehicle was struck by a vehicle operated by Henry and owned by his employer, Pelican. Pelican moved pursuant to CPLR 3211(a)(1) to dismiss the amended complaint insofar as asserted against it, arguing that Henry was operating a vehicle owned by him and was not in the course of his employment at the time of the accident. The Supreme Court granted Pelican's motion, and the plaintiff appeals.
"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" ( Qureshi v. Vital Transp., Inc., 173 A.D.3d 1076, 1077, 103 N.Y.S.3d 515 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). "[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity" ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ; see Hartnagel v. FTW Contr., 147 A.D.3d 819, 820, 47 N.Y.S.3d 96 ; Anderson v. Armentano, 139 A.D.3d 769, 770–771, 33 N.Y.S.3d 294 ). "[J]udicial 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, would qualify as documentary evidence in the proper case" ( Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted]; see Bonavita v. Government Empls. Ins. Co., 185 A.D.3d 892, 893, 127 N.Y.S.3d 577 ; Leader v. Steinway, Inc., 180 A.D.3d 886, 887–888, 119 N.Y.S.3d 516 ). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" ( J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 [internal quotation marks omitted]; see Porat v. Rybina, 177 A.D.3d 632, 633, 111 N.Y.S.3d 625 ; JBGR, LLC v. Chicago Tit. Ins. Co., 128 A.D.3d 900, 903, 11 N.Y.S.3d 83 ).
Here, the affidavit submitted by Pelican in support of its motion did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) (see Bonavita v. Government Empls. Ins. Co., 185 A.D.3d at 894, 127 N.Y.S.3d 577 ; Porat v. Rybina, 177 A.D.3d at 633, 111 N.Y.S.3d 625 ). Pelican's other evidentiary submissions attached to its motion papers were insufficient to utterly refute the plaintiff's factual allegations (see Hartnagel v. FTW Contr., 147 A.D.3d at 821, 47 N.Y.S.3d 96 ), and Pelican cannot rely on additional material improperly submitted for the first time in reply (see Qureshi v. Vital Transp., Inc., 173 A.D.3d at 1078, 103 N.Y.S.3d 515 ).
Accordingly, the Supreme Court should have denied Pelican's motion pursuant to CPLR 3211(a)(1) to dismiss the amended complaint insofar as asserted against it.
BARROS, J.P., MILLER, ZAYAS and WAN, JJ., concur.