Opinion
2022-02914
04-29-2022
ROBERT R. DAVIS, PLAINTIFF-RESPONDENT, v. EVANGELICAL LUTHERAN CHURCH IN AMERICA, ET AL., DEFENDANTS, AND UPSTATE NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA, DEFENDANT-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-APPELLANT. CHIACCHIA & FLEMING, LLP, HAMBURG (CHERYL KENNEDY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHIACCHIA & FLEMING, LLP, HAMBURG (CHERYL KENNEDY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Erie County (Deborah A. Chimes, J.), entered June 22, 2021. The order denied the motion of defendant Upstate New York Synod of the Evangelical Lutheran Church in America to dismiss the complaint against it.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal, defendant-appellant (defendant) contends that Supreme Court erred in denying its motion to dismiss the complaint against it pursuant to CPLR 3211 (a) (1). We reject that contention.
In order to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant must proffer documentary evidence that "utterly refute[s]" the factual allegations in the complaint, "conclusively establishing a defense as a matter of law" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 [2021], rearg denied 37 N.Y.3d 1020 [2021] [internal quotation marks omitted])." '[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'" (Ajaka v Mount Sinai Hosp., 189 A.D.3d 963, 965 [2d Dept 2020]; see Rider v Rainbow Mobile Home Park, LLP, 192 A.D.3d 1561, 1563 [4th Dept 2021]). However, "[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)" (Rodolico v Rubin & Licatesi, P.C., 114 A.D.3d 923, 925 [2d Dept 2014] [internal quotation marks omitted]; see Rider, 192 A.D.3d at 1563). Here, the documentary evidence submitted by defendant failed to utterly refute the factual allegations in the complaint, and we therefore conclude that the court properly denied the motion.