CPLR R. 3211(a)(1) defense is founded upon documentary evidence
Surace v Commonwealth Land Tit. Ins. Co., 2009 NY Slip Op 04050 (App. Div., 2nd, 2009)
On April 5, 2005, the plaintiffs obtained a mortgage interest in
real property in the principal sum of $360,000. The plaintiffs obtained
title insurance from the defendant. The defendant did not submit the
mortgage document for recording until January 30, 2006. In the interim,
on July 14, 2005, a second mortgage was taken out on the property. This
second mortgage was recorded on August 1, 2005. Thus, the second
mortgage was recorded before the first mortgage held by the plaintiffs,
and became the first lien on the property. The plaintiffs commenced
this action, alleging, inter alia, a breach of the title insurance
policy and the negligent failure to timely record the mortgage.To prevail on that branch of its motion which was to dismiss
the complaint pursuant to CPLR 3211(a)(1), the defendant was required
to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v [*2]Mutual Life Ins. Co. of N.Y., 98
NY2d 314, 326). Insofar as the defendant's motion is predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88).The complaint states a valid cause of action alleging a breach
of the title insurance policy. The complaint also states a valid cause
of action alleging negligence, which is independent of the parties'
contract of insurance (see Gem Servs. of N.Y. v United Gen. Tit. Ins. Co., 28 AD3d 516; Cruz v Commonwealth Land Tit. Ins. Co., 157
AD2d 333). Moreover, contrary to the arguments of the defendant, the
documentary evidence failed to refute the plaintiffs' allegations.
Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)
In order to prevail on that branch of their cross motion which was to
dismiss the complaint pursuant to CPLR 3211(a)(1), the defendants were
required to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d
314, 326). Insofar as the defendants' cross motion was predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Whether the plaintiff can ultimately establish the allegations is not part of the calculus'" (Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716, 717-718, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).
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