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Scadura v. Robillard

Appellate Division of the Supreme Court of New York, Second Department
Dec 28, 1998
256 A.D.2d 567 (N.Y. App. Div. 1998)

Opinion

December 28, 1998

Appeal from the Supreme Court, Dutchess County (Jiudice, J.).


Ordered that the order is reversed, on the law, with costs, and the motion is denied.

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1) and (5), 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, Leon v. Martinez, 84 N.Y.2d 83, 87-88; Kalivia Food Corp. v. Hunts Point Coop Mkt., 244 A.D.2d 460; Fernandez v. Cigna Prop. Cas. Ins. Co., 188 A.D.2d 700). The respondents failed to carry that burden. While the respondents' documentary evidence demonstrated that, based upon their unilateral amortization calculations, the respondents tendered an amount that they believed was sufficient to satisfy their indebtedness to the plaintiff, the plaintiff asserted a facially-valid claim for an additional $39,461.57. Inasmuch as the documentary evidence did not conclusively prove that the outstanding debt had been paid in full and the plaintiff's claim was unfounded, the respondents were not entitled to the dismissal of the foreclosure action.

Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.


Summaries of

Scadura v. Robillard

Appellate Division of the Supreme Court of New York, Second Department
Dec 28, 1998
256 A.D.2d 567 (N.Y. App. Div. 1998)
Case details for

Scadura v. Robillard

Case Details

Full title:MICHAEL SCADURA, Appellant, v. PETER S. ROBILLARD et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 28, 1998

Citations

256 A.D.2d 567 (N.Y. App. Div. 1998)
683 N.Y.S.2d 108

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