The transaction in the instant case involves, as do all letter of credit transactions, three separate contractual relationships. ( See Blonder Co., Inc. v Citibank, N.A., 28 AD3d 180, 181.) In Blonder, this Court itemized the three relationships as: the underlying contract for the purchase and sale of goods or services; the agreement between the issuer, usually a bank, and its customer, the applicant for the letter of credit; and the letter of credit itself in which the issuer/bank undertakes to honor drafts presented by the beneficiary upon compliance with the terms and conditions specified in the letter of credit.
If the invoice and bills of lading thus conform, the banks must pay the seller regardless of defenses that the buyer may assert against the seller. See Alaska Textiles Co. v. Chase Manhattan Bank, N.A. 982 F.2d 813, 815-16 (2d Cir. 1992) (collecting cases); Mennen v. J.P. Morgan Co., Inc., 91 N.Y.2d 13, 20 (N.Y. 1997); Blonder Co., Inc. v. Citibank, N.A., 808 N.Y.S.2d 214, 216 (N.Y.App. Div. 1st Dept. 2006). In an open account, the contractual relationship between the buyer and seller, and the course of dealing between them, govern their relationship.
To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiff's claims (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 182 [1st Dept 2006]). 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" (McCully v. Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept. 2009]).
II. LEGAL STANDARD To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiff's claims (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 182 [1st Dept 2006]). 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" (McCully v. Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept. 2009]).
II. LEGAL STANDARD To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiff's claims (see, 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 182 [1st Dept 2006]). 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" (McCully v. Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept. 2009]).
To prevail on a CPLR 3211 (a) (1) motion to dismiss, a defendant has the "'burden of showing that the relied-upon documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.'" (Fortis Fin. Servs. v Fimat Futures USA, Inc., 290 AD2d 383, 383 [1st Dept 2002]; accord Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Blonder & Co. v Citibank. N.A., 28 AD3d 180, 182 [1st Dept 2006].) The documentary evidence must clearly negate an essential element of the cause of action.
To prevail on a CPLR 3211 (a) (1) motion to dismiss, a defendant has the "'burden of showing that the relied-upon documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.'" (Fortis Fin. Servs. v Fimat Futures USA. Inc., 290 AD2d 383, 383 [1st Dept 2002]; accord Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Blonder & Co. v Citibank. N.A., 28 AD3d 180, 182 [1st Dept 2006].) The documentary evidence must clearly negate an essential element of the cause of action.
Deutsche argues that the letter of credit is best conceptualized as an encapsulated and separate transaction, despite the presence of an underlying contract for services, goods, etc., and another contract between the bank and its customer. It argues its approach is consistent with appellate authority in the First Department (Blonder v. Citibank, N.A., 28 AD3d 180 [1st Dept 2006]) and in accordance with the Uniform Customs and Practice for Documentary Credits ("UCP") established by the International Chamber of Commerce. However, defendants argue that the agreement must be read in pari materia with other documents and there is, therefore, a disputed triable issue of fact whether the agreement are integrated and interdependent (Rudman v. Cowles Communications. Inc., 30 NY2d 1).
The complaint alleges that, although the nominal tenant is ABN (which did not offer to sell the Building), Bear Stearns (which did offer to sell the Building) breached the Ground Lease because, through its wholly-owned subsidiary Gregory, it agreed to continue to be primarily and solely responsible for the performance of the obligations of the tenant under the Ground Lease. Even assuming the correctness of this assertion for purposes of this motion, and it has support in the record, dismissal of the complaint is warranted because there are no factual issues, and the documentary evidence disposes of all claims as a matter of law in Defendants' favor ( Blonder Co., Inc. v Citibank, N.A., 28 AD3d 180, 182 [1st Dept 2006]). See e.g. Exhibit C to Affirmation of Sarah L. Hartley, Esq. (letter agreement, dated August 28, 2003).
Under such circumstances, we are not permitted to make them say something else. See Blonder Co., Inc. v. Citibank, N.A., 28 A.D.3d 180, 808 N.Y.S.2d 214 (N.Y.App. 2006). IV.