Opinion
Submitted October 20, 1999
November 30, 1999
In an action to recover damages for personal injuries, etc., the defendant Joe Eisenberger Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated May 18, 1999, as denied its motion pursuant to CPLR 3211(a)(11) to dismiss the complaint insofar as asserted against it.
Sheldon Eisenberger, New York, N.Y. (Seth Eisenberger of counsel), for appellant.
Feder, Goldstein, Tanenbaum, D'Errico Arnedos, LLP, Mineola, N Y (Morton H. Feder of counsel), for respondent.
Furey, Kerley, Walsh, Matera Cinquemani, P.C., Mineola, N Y (Rosemary Cinquemani of counsel), for nonparty respondent.
LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs to the plaintiff-respondent.
To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see, Scadura v. Robillard, 256 A.D.2d 567; Leon v. Martinez, 84 N.Y.2d 83, 87-88; Kalivia Food Corp. v. Hunts Point Coop. Mkt., 244 A.D.2d 460). Here, the documentary evidence submitted by the defendant in support of its motion failed to meet that burden.
BRACKEN, J.P., SANTUCCI, ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.