Opinion
CA 05-02538.
April 28, 2006.
Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered May 16, 2005. The order, insofar as appealed from, denied in part defendants' motion to dismiss the complaint.
GROSS, SHUMAN, BRIZDLE GILFILLAN, P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Gorski, Martoche, Smith and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages arising from defendants' alleged breach of two agreements. Supreme Court properly denied that part of defendants' motion seeking dismissal of the first and third causes of action, for breach of contract, based upon a defense "founded upon documentary evidence" (CPLR 3211 [a] [1]). Contrary to the contention of defendants, the documentary evidence submitted by them does not as a matter of law establish a defense to the first and third causes of action ( see generally Leon v. Martinez, 84 NY2d 83, 87-88; Cherry v. Resource Am., 285 AD2d 989, 990).