CPLR R. 3211

Defendants made a preanswer motion to dismiss pursuant to CPLR 3211
(a) (1) asserting a defense founded upon documentary evidence. Supreme
Court granted the motion and plaintiffs now appeal.

In this procedural context, "the court must afford the
pleadings a liberal construction, take the allegations of the complaint
as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11,
19 [2005]). "Whether a plaintiff can ultimately establish its
allegations is not part of the calculus in determining a motion to
dismiss" (id.). When the motion to dismiss is premised upon
documentary evidence, "such motion may be appropriately granted only
where the documentary evidence utterly refutes plaintiff's allegations,
conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y.,
98 NY2d 314, 326 [2002]). While factual affidavits submitted by a
plaintiff may be considered to remedy defects in the complaint (see Leon v Martinez, 84 NY2d [*2]83,
88 [1994]), affidavits submitted by a defendant do not constitute
documentary evidence upon which a proponent of dismissal can rely (see Realty Invs. of USA v Bhaidaswala, 254 AD2d 603, 604-605 [1998]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:10, at 21-22).

The first and second causes of action involve the underground
septic system, which defendants asserted had been in place, operational
and openly serviced since before they purchased their lot in 1985.
There is no easement in their deed regarding the septic tank and leach
fields. They assert a prescriptive easement, but such assertion rests
on factual affidavits submitted by or on behalf of defendants. While
such affidavits might suffice to establish the elements of their
defense in a motion for summary judgment, they do not afford a proper
basis for a motion to dismiss based on documentary evidence.
Accordingly, dismissal of the first and second causes of action must be
reversed.

The defense to the third and fourth causes of action is,
however, supported by appropriate documentary evidence. The
specifically described easement on the north boundary of plaintiffs'
lot is set forth in defendants' 1985 deed, plaintiffs' 1993 deed
provided that they took title subject to the easement and,
significantly, the parties had acknowledged the existence and validity
of the access easement in a signed document in 2002. These documents
were all produced by defendants, they are proper documents for
consideration on a motion to dismiss pursuant to CPLR 3211 (a) (1), and
plaintiffs did not challenge the authenticity of any of these
documents. We agree with Supreme Court that these documents
conclusively established the continuing validity of the access easement
and, accordingly, the third and fourth causes of action were properly
dismissed (see Adamkiewicz v Lansing, 288 AD2d 531, 532 [2001]; see also M. Fund, Inc. v Carter, 31 AD3d 620, 621 [2006]; Yoshiharu Igarashi v Shohaku Higashi, 289 AD2d 128, 128 [2001]).