Opinion
2014-01-29
JP MORGAN CHASE BANK, N.A., etc., respondent, v. Nirmala BALLIRAJ, et al., appellants. (Action No. 1) Residential Funding Company, LLC, respondent, v. Nirmala Balliraj, et al., appellants. (Action No. 2).
Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Jonathan B. Schloss of counsel), for appellants. Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), for respondent.
Daniel E. Bertolino, P.C., Upper Nyack, N.Y. (Jonathan B. Schloss of counsel), for appellants. Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), for respondent.
In related actions, inter alia, to reform a mortgage and deed, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated June 11, 2012, as denied that branch of their cross motion which was to dismiss the complaint in Action No. 2 pursuant to CPLR 3211(a)(1) and, in effect, denied that branch of their cross motion which was to dismiss the complaint in Action No. 2 pursuant to CPLR 3211(a)(4).
ORDERED that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (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; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Paramount Transp. Sys., Inc. v. Lasertone Corp., 76 A.D.3d 519, 520, 907 N.Y.S.2d 498; Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 37–38, 827 N.Y.S.2d 231). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute “documentary evidence” within the meaning of CPLR 3211(a)(1) ( see Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in Action No. 2, Residential Funding Company, LLC, lacks standing.
The Supreme Court providently exercised its discretion by, in effect, denying that branch of the defendants' cross motion which was to dismiss the complaint in Action No.2 pursuant to CPLR 3211(a)(4) ( see Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324; Morgan Barrington Fin. Servs., Inc. v. Nahzi, 85 A.D.3d 1135, 926 N.Y.S.2d 315; DAIJ, Inc. v. Roth, 85 A.D.3d 959, 925 N.Y.S.2d 867; Liebert v. TIAA–CREF, 34 A.D.3d 756, 757, 826 N.Y.S.2d 339).
The defendants' remaining contentions are without merit. RIVERA, J.P., LEVENTHAL, HALL and ROMAN, JJ., concur.