Trade Source, Inc. v. Westchester Wood Works, Inc.

In an action, inter alia, to foreclose a mechanic’s lien, the defendant Leigh Isaacs appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered March 13, 2001, as denied that branch of his motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against him. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly denied that branch of the appellant’s motion which was, in effect, pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against him. “To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Teitler v Pollack & Sons, 288 AD2d 302; see, Held v Kaufman, 91 NY2d 425; Leon v Martinez, 84 NY2d 83). The documentary evidence submitted by the appellant to demonstrate that the plaintiff did not file notice of the mechanic’s lien failed to conclusively establish that defense as a matter of law (see, Leon v Martinez, supra). Altman, J.P., Adams, Townes and Prudenti, JJ., concur.