Like a bullet to the head. CPLR R. 3211(a)(1). What constitutes “documentary evidence.”

Sometimes procedure serves as a minor irritant, preventing immediate relief.  Other times it works like a baseball bat to your knees, preventing you from getting from point A to point B in your usual and customary fashion.  And in others, it’s a bullet to the head, preventing you from going anywhere at all.

I was going to use that introduction in an article, but it was vetoed.  Perhaps rightfully so.  But I really want to use it.

This decision contains a great discussion of 3211(a)(1), particularly what constitutes "documentary evidence."  CPLR 3211(a)(1), much like (a)(7) is used far too often under circumstances that don't suit it.1  Both are used as a way to get a pre-answer motion to dismiss in, where the facts don't quite fit.  Even though it might get the motion through the gate, it doesn't mean that it will get to the finish line.  It would make more sense to use it to get the motion, in but to request that it be converted. Other times, they are used as a way around 3212(a)'s 120 day time limit.

CPLR R. 3211(a)(1)

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (App. Div., 2nd, 2010)


On November 30, 2007, the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(1) based on "documentary evidence." They argued, among other things, that the plaintiff's privileges were terminated after he "engaged in a dangerous trend of substandard patient care," and that they were immunized from liability by the HCQIA and New York State Public Health Law § 2805-m(3) because the Hospital's decision to terminate the plaintiff 's privileges "was reasonable and in furtherance of quality health care." In support of their motion, the defendants submitted the following items, asserting that they constituted "documentary evidence" within the intendment of CPLR 3211(a)(1): a completely redacted Quality Improvement Morbidity Report (written conclusions of the CQI Committee reviews); a memorandum from Monica Santoro of the Hospital's Risk Management Department to Barbara Kohart-Kleine, a Vice President of the Hospital administration, regarding the plaintiff's cases that were being reviewed by that Department; five sets of minutes from Quality Improvement Meetings (the minutes of the CQI Committee meetings); a report from New York Patient Occurrence Report and Tracking System; a report from; excerpts of testimony from Medical Staff Hearings; five excerpts of minutes from the Ad Hoc Committee Hearings; attendance sheets from CQI Committee meetings; a chart review; a copy of an e-mail correspondence between Barbara Vallone, R.N., and Dr. Teplitz discussing the plaintiff's failure to follow Hospital protocol; a transcript of the proceedings held before the Appellate Review Board; minutes from an Executive Committee Meeting; minutes from a Board of Directors' Executive Session; minutes from the Appellate Review Committee Meeting; and eight letters either from or to the plaintiff, Dr. DiMaio, or the Hospital administration discussing the plaintiff's cases, his failure to follow Hospital protocol, or his suspension (hereinafter collectively the defendants' printed materials).

Both before the Supreme Court and at oral argument in this Court, the defendants limited the scope of that branch of their motion which was to dismiss the complaint to one pursuant to CPLR 3211(a)(1), relying solely on the above-mentioned alleged "documentary evidence," and declined to rely on any other subdivision of CPLR 3211(a). Nor did they argue that their application should be treated as a motion for summary judgment under CPLR 3211(c). In its order entered April 2, 2008, the Supreme Court denied that branch of the defendants' motion which was to dismiss the complaint, finding that the proof relied upon by them was not "documentary evidence." We agree.


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" (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383; see Leon v Martinez, 84 NY2d 83, 88; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). "[I]f the court does not find [their] submissions documentary', it will have to deny the motion" (Siegel, Practice Commentaries, [*4]McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 22). Since the printed materials relied on by the defendants do not qualify as such,[FN2] we affirm the denial of that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

The History and Development of CPLR 3211(a)(1)

CPLR 3211, including subdivision (a)(1),[FN3] appears to have had its genesis in the 1957 First Preliminary Report of the Advisory Committee on Practice and Procedure (1st Rep Leg Doc [1957] No. 6[b] [hereinafter the Report]). According to that Report, the purpose of CPLR 3211(a)(5) was to cover the most common affirmative defenses founded upon documentary evidence, specifically, estoppel, arbitration and award, and discharge in bankruptcy, whereas 3211(a)(1) was enacted to "cover all others that may arise, as for example, a written modification or any defense based on the terms of a written contract" (id. at 85). To some extent, "documentary evidence" is a "fuzzy" term, and what is documentary evidence for one purpose, might not be documentary evidence for another.[FN4]

As Professor Siegel has noted in his Commentary to CPLR 3211, there is "a paucity of case law" as to what is considered " documentary' under [CPLR 3211(a)(1)]" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case (id.; see 2 NY Prac., Com. Litig. in New York State Courts § 7:60, 2d ed). For example, in Matter of Casamassima v Casamassima (30 AD3d 596), this Court held that a trust agreement qualified as "documentary evidence" in a dispute between co-trustees.

In Bronxville Knolls v Webster Town Ctr. Partnership (221 AD2d 248), the Appellate Division, First Department, found that an integrated mortgage and note, which unambiguously made the property itself the plaintiffs' sole recourse, constituted "documentary evidence." In Crepin v Fogarty (59 AD3d 837, 839), the Appellate Division, Third Department, found that a deed qualified as "documentary evidence" where it conclusively established the validity of the disputed easement.

Along the same lines, in 150 Broadway N.Y. Assoc., L.P. v Bodner (14 AD3d 1, 7), the Appellate Division, First Department, found that a lease which unambiguously contradicted the allegations supporting the plaintiff's cause of action alleging breach of contract constituted "documentary evidence" under CPLR 3211(a)(1). The Court noted that this lease represented a clear and complete written agreement between sophisticated, counseled business people negotiating at arms length (id. at 8). Relying on the same reasoning, the Appellate Division, Third Department, in Ozdemir v Caithness Corp. (285 AD2d 961), held that a contract constituted "documentary evidence" in a dispute regarding the payment of a finder's fee.

On the other hand, the case law is somewhat more abundant as to what is not "documentary evidence." As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court's dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not "documentary evidence," as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not "documents" within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not "essentially undeniable."

In sum, to be considered "documentary," evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as "documentary evidence," particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as "documentary evidence" in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as "documentary evidence." However, it is clear that affidavits and deposition testimony are not "documentary evidence" within the intendment of a CPLR 3211(a)(1) motion to dismiss.

The Instant Motion

The essence of the defendants' contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) "documentary evidence," i.e., the defendants' printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants' position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital's agents and employees. They clearly do not reflect an out-of-court transaction and are not "essentially undeniable" (see Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not "documentary evidence" within the intendment of CPLR 3211(a)(1).

Since the defendants' printed materials were not "documentary evidence" and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties' remaining contentions.

We also reject the defendants' position at oral argument, i.e., that the policy considerations underlying the immunity granted to them by the HCQIA mandate that this matter be decided by their 3211(a)(1) motion to dismiss, without requiring them to wait and make a summary judgment motion. [*6]

Pursuant to CPLR 3211(c),[FN5] a party can have its motion treated as one for summary judgment (even prior to joinder) either by charting a summary judgment course or by requesting such treatment. Thus, had the defendants truly desired an expedited determination, they could have first moved to dismiss pursuant to CPLR 3211(a) and then requested that the court convert that motion to one for summary judgment under CPLR 3211(c) prior to serving an answer, since all of the papers they chose to rely on were available prior to the commencement of this action (see Mihlovan v Grozavu, 72 NY2d 506, 508; Yule v New York Chiropractic Coll., 43 AD3d 540, 541; Bowes v Healy, 40 AD3d 566; Love v Morrow & Co., 193 AD2d 586). Alternatively, the defendants could have answered and then moved for summary judgment pursuant to CPLR 3212 without waiting for any discovery.

Instead, they chose this narrowly circumscribed and focused motion pursuant to CPLR 3211(a)(1), and thereby charted their own course. As such, they should not be heard to complain about the consequences thereof (see Nishman v De Marco, 62 NY2d 926, 929; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544-545; Manning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 522).

The bold is mine.


1.  You see a lot of these motions in no-fault.  Judge's are starting to see that 3211 is not the catch-all defendant's would make it out to be. See VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U) (Civ Ct City NY, Kings County).

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