Opinion
2011-11-1
Wendell FRANCIS, appellant,v.VORNADO REALTY TRUST/KINGS PLAZA MALL, respondent.(and a third-party action).
Wendell Francis, Brooklyn, N.Y., appellant pro se.Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Mark A. Taustine of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.) dated July 29, 2010, as granted the defendant's motion, among other things, pursuant to CPLR 3211(a)(1) and denied, as academic, his cross motion, inter alia, for discovery.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted if “a defense is founded upon documentary evidence” (CPLR 3211[a][1]; see Fontanetta v. Doe, 73 A.D.3d 78, 898 N.Y.S.2d 569). Here, the Supreme Court correctly determined that the documentary evidence submitted by the defendant Vornado Realty Trust/Kings Plaza Mall utterly refuted the factual allegations of the plaintiff's complaint and conclusively established a defense to the claims as a matter of law ( see 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; Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668; *889 Fontanetta v. Doe, 73 A.D.3d at 83, 898 N.Y.S.2d 569). As such, the Supreme Court also properly denied, as academic, the plaintiff's cross motion, inter alia, for discovery.
The parties' remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic by our determination.
DILLON, J.P., FLORIO, CHAMBERS and MILLER, JJ., concur.