Mest Management Corp. v. Double M Management Co.

In an action to recover damages for breach of [480] contract, the defendants Double M Management Co., Inc., and Amir Cab Corp. appeal from an order of the Supreme Court, Queens County (Graci, J.), dated July 24, 1991, which, inter alia, denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). Ordered that the order is affirmed, without costs or disbursements. In order to prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), the document relied upon must conclusively dispose of the plaintiff’s claim (see, Sammarco Garden Ctr. v Sammarco, 173 AD2d 456; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303). The appellants’ submission of copies of checks issued by the plaintiff with the contention that they are not in possession of a check for the week of November 12, 1990, does not conclusively dispose of the plaintiff’s allegation of full payment under the agreement. Evidence of this nature does not fall under the purview of CPLR 3211 (a) (1). We have considered the appellants’ remaining contentions and find them to be without merit. Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.