Standard Chartered Bank v. D. Chabbott, Inc.

Order of the Supreme Court, New York County (William J. Davis, J.), entered April 3, 1991, which, to the extent appealed from, granted defendant’s motion to dismiss the complaint, pursuant to CPLR 3211 (a) (1), unanimously affirmed, with costs. It is well settled that a defense based upon documentary evidence is not dispositive "unless the documents submitted resolve all of the factual issues as a matter of law” (Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873, 874). Such was achieved by defendant’s documentary evidence establishing that payments were made in excess of the debt owed for merchandise sold to it by plaintiff’s predecessor in interest. Plaintiff acknowledges the payments, but argues that they may have been loans extended to defendant by plaintiff’s predecessor. However, the affidavit of defendant’s principal established that payment was made to reduce the debts shown in the memorandum invoices on which the action is based. This affidavit was used not to establish the fact of the payments, essentially conceded, but merely to demonstrate the connecting link between the payments and the only debt owed (see, Dumont v Raymond, 49 NYS2d 865, 867, affd 269 App Div 592). Given plaintiff’s failure to come forward with evidentiary facts tending to substantiate its conclusory allegations concerning the purpose of these payments, sufficient was shown to warrant dismissal of the action on the basis of 113 documentary evidence. Concur—Murphy, P. J., Carro, Ellerin, Kassal and Smith, JJ.