First, Second Departments Split on What Is Considered ‘Documentary Evidence’

December 19, 2017

CPLR 3211(a)(1) allows a defendant to “move for judgment dismissing one or more causes of action asserted against him on the ground that … a defense is founded upon documentary evidence.” The CPLR does not define the phrase “documentary evidence.” Commentators on the CPLR have attempted to fill the void by offering their own take on the issue. See, e.g., Higgitt, “CPLR 3211(a)(1) and (a)(7) Dismissal Motions—Pitfalls and Pointers,” 83 N.Y. St. B.A. J. 32, 32 (November/ December 2011) (hereinafter Higgitt 2011); Paige Bartholomew, “It May Look Like Documentary Evidence, But Is it Under CPLR 3211(a)(1)?,” New York Commercial Division Practice Blog (Sept. 14, 2017); Mark A. Berman, “iPhones, Twitter, Deleted Emails and ESI Under CPLR 3211(A) (1),” New York Law Journal (Nov. 4, 2014). And the First and Second Departments have split on whether certain types of paper qualify as “documentary evidence.” See David D. Siegel, New York Practice, 259 (5th Ed. Jan. 2017 supplement) (noting the split between the First and Second Departments as to whether an email can suffice as documentary evidence under CPLR 3211(a) (1)). The First Department has taken a flexible approach, holding that documents that are “essentially undeniable” constitute “documentary evidence.” The Second Department has taken a more categorical approach, holding that emails and correspondence such as letters do not constitute “documentary evidence.” Even in the First Department, however, motions to dismiss on the basis of documentary evidence are held to an exacting standard, and an email will not support dismissal if does not conclusively refute the asserted claim.

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