Nevin v. Laclede Professional Products, Inc.

In an action, inter alia, to enforce an option to purchase stock pursuant to a letter of agreement, the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), entered July 29, 1999, which denied its motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint. Ordered that the order is affirmed, with costs. “Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss” (Rovello v Orofino Realty Co., 40 NY2d 633, 635). With respect to the branch of the defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) the defendant failed to meet its burden of showing that the documentary evidence submitted resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim (see, Leon v Martinez, 84 NY2d 83, 87-88; Brunot v Eisenberger & Co., 266 AD2d 421). Further, with respect to the branch, of the defendant’s motion to dismiss pursu [454] ant to CPLR 3211 (a) (7), we find that the complaint states a cause of action. Ritter, J. P., Sullivan, Florio and Feuerstein, JJ., concur.