Opinion
2017–01916 Index No. 705653/15
04-25-2018
Marie SIMS, etc., et al., respondents, v. PROM REALTY CO., LLC, appellant.
Furman Kornfeld & Brennan LLP, New York, N.Y. (Doris Bogdani of counsel), for appellant.
Furman Kornfeld & Brennan LLP, New York, N.Y. (Doris Bogdani of counsel), for appellant.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for wrongful death, etc., the defendant appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered January 18, 2017. The order denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
"A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the ‘documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ " ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 83, 898 N.Y.S.2d 569, quoting Fortis Fin. Servs. v. Fimat Futures USA, 290 A.D.2d 383, 383, 737 N.Y.S.2d 40 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Guido v. Orange Regional Med. Ctr., 102 A.D.3d 828, 830, 958 N.Y.S.2d 195 ). "In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668 [internal quotation marks omitted] ). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" ( Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668 [internal quotation marks omitted]; see Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 1017, 900 N.Y.S.2d 686 ; Fontanetta v. John Doe 1, 73 A.D.3d at 86, 898 N.Y.S.2d 569 ). Contrary to the defendant's contention, the leases, assignments, and modification and extension agreement it submitted in support of its motion did not establish that the defendant was not responsible for the maintenance of the subject property, and accordingly, the evidence did not conclusively establish a defense as a matter of law.
Moreover, the certified meteorological records the defendant submitted in support of its motion did not conclusively dispose of the plaintiff's claim by demonstrating that the storm-in-progress rule applied, as those records concerned climatological data obtained from Central Park, New York, a location in a county different from the accident location.
Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.
LEVENTHAL, J.P., SGROI, LASALLE and BRATHWAITE NELSON, JJ., concur.