JP Morgan Chase Bank, N.A. v. Balliraj

A motion to dismiss pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where 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 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520 [2010]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38 [2006]). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). Further, contrary to the defendants’ contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in action No. 2, Residential Funding Company, LLC, lacks standing. The Supreme Court providently exercised its discretion by, in effect, denying that branch of the defendants’ cross motion which was to dismiss the complaint in action No. 2 pursuant to CPLR 3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Morgan Barrington Fin. Servs., Inc. v Nahzi, 85 AD3d 1135 [2011]; DAIJ, Inc. v Roth, 85 AD3d 959 [2011]; Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]). The defendants’ remaining contentions are without merit. Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.