Morales v. 78 4th Avenue Corp.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the *749Supreme Court properly concluded, the documentary evidence submitted by the defendants in support of their cross motion to dismiss does not establish their defense as a…