In addition, plaintiff's 1990 brokerage account with Smith Barney, in paragraph 12, and her 1994 brokerage account with Smith Barney, in paragraph 4, both contained a contractually mandated ten-day period in which plaintiff was required to object to any disputed charges in writing or waive any objection. The record shows plaintiff made no effort to rebut Smith Barney's showing with respect to both accounts that plaintiff failed to object in writing within ten days of the imposition of the Account Transfer Fee, but in May of 1994 closed her 1990 account and transferred the account to Dean Witter, and in July of 1994 closed her 1994 account, also transferring this account to Dean Witter ( see, Talbi v ZCWK Assocs., 179 A.D.2d 475, 476; Congress Talcott Corp. v Damino Accessories, 166 A.D.2d 152, 153).

"A paper will qualify as 'documentary evidence' only if it satisfies the following criteria: (1) it is 'unambiguous'; (2) it is of 'undisputed authenticity'; and (3) its contents are 'essentially undeniable'" (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019] [internal citation omitted]). Leases and offering plans are considered documentary evidence for purposes of CPLR 3211 (a) (1) (see Philanthrope v Papa John's Pizza, 191 A.D.3d 563, 563 [1st Dept 2021]; Talbi v ZCWK Assoc, 179 A.D.2d 475, 476 [1st Dept 1992]),

However, whether the roof was "improperly sloped" (or whether an inspection would have revealed this issue) is not as obvious. Defendants' reliance on Talbi v ZCWK Assoc. (179 AD2d 475, 476 [1st Dept 1992]) for the proposition that an improperly sloped roof is a patent defect is unavailing. The court in Talbi held that "green water, crooked wall and malfunctioning windows" were patent defects that were "visually ascertainable" (id.).

But the First Department has previously enforced comparably short notice-of-defect provisions in a condominium offering plan. (See Talbi v. ZWCK Assocs., 179 AD2d 475, 476 [1st Dept 1992].) Additionally, plaintiff Board, and the purchasers of individual units within the building, are also well-resourced, sophisticated parties who chose to submit themselves to the terms of the offering plan, including the notice-of-defect requirements.

But the First Department has previously enforced comparably short notice-of-defect provisions in a condominium offering plan. ( See Talbi v. ZWCK Assocs. , 179 AD2d 475, 476 [1st Dept 1992].) Additionally, plaintiff Board, and the purchasers of individual units within the building, are also well-resourced, sophisticated parties who chose to submit themselves to the terms of the offering plan, including the notice-of-defect requirements.

For example, the punch list addressed the HVAC ducts and a cold waiting room, leaks in the ceiling tiles, inadequate lighting in the parking lot, and the building of a sound-proofing wall (Ex. "K" to Motion). Moreover, the HVAC system, leaks in roof, unacceptable noise level, and inadequate lighting in the parking lot — alleged to be latent defects — were not latent but, rather, were "visually ascertainable upon inspection" (Talbi v ZCWK Assoc., 179 AD2d 475 [1st Dept 1992]). Given Mandraccia's awareness of these issues prior to closing, each of which was discoverable upon a reasonable inspection, the court concludes, as a matter of law, that they are not "latent defects" (CPLR 3212 [g]).

Under CPLR 3211(a)(1), a court may dismiss a complaint based upon a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claim as a matter of law. SeeJohnson v Chase Manhattan Bank USA, N.A. , 2 Misc 3d 1003 A (Supt Ct. New York Co. 2004) (citing Leon v Martinez, 84 NY2d 83 (1994); Bronxville Knolls, Inc. V Webster Town Center Partnership, 221 AD2d 248 (1st Dept 1995); Talbi v ZCWK Assocs., 179 AD2d 475 (1st Dept 1992)).In the instant matter, defendant has argued that an arbitration agreement exists between the parties.

Under CPLR 3211(a)(1), a court may dismiss a complaint based upon a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claim as a matter of law (SeeJohnson v Chase Manhattan Bank USA, N.A. , 2 Misc 3d 1003A (Supt Ct. New York Co. 2004) (citing Leon v Martinez, 84 NY2d 83 (1994); Bronxville Knolls, Inc. V Webster Town Center Partnership, 221 AD2d 248 (1st Dept 1995); Talbi v ZCWK Assocs., 179 AD2d 475 (1st Dept 1992)).In the instant matter, defendant has argued that an arbitration agreement exists amongst the parties. Plaintiff has not opposed this claim nor does plaintiff oppose defendant's application to submit this claim to arbitration.

In addition, CPLR 7503 (a) directs that "[w]here there is no substantial question whether a valid agreement was made or complied with * * * the court shall direct the parties to arbitrate." Pursuant to CPLR 3211(a)(1), a court may dismiss a complaint based on a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claims as a matter of law ( Leon v. Martinez, 84 NY2d 83; Bronxville Knolls, Inc. v. Webster Town Center Partnership, 221 AD2d 248 [1st Dept 1995]; Talbi v. ZCWK Assocs., 179 AD2d 475 [1st Dept 1992]). Here, the complaint must be dismissed as a matter of law because this action is specifically barred by the plain and unambiguous terms of the Arbitration Agreement entered into by the parties.