Opinion
December 27, 1993
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, without costs or disbursements.
In order to prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), the document relied upon must conclusively dispose of the plaintiff's claim (see, Sammarco Garden Ctr. v Sammarco, 173 A.D.2d 456; Greenwood Packing Corp. v Associated Tel. Design, 140 A.D.2d 303). The appellants' submission of copies of checks issued by the plaintiff with the contention that they are not in possession of a check for the week of November 12, 1990, does not conclusively dispose of the plaintiff's allegation of full payment under the agreement. Evidence of this nature does not fall under the purview of CPLR 3211 (a) (1).
We have considered the appellants' remaining contentions and find them to be without merit. Mangano, P.J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.