Clarification of CPLR 3211(a) Documentary-Evidence Standard and Debtor & Creditor Law Insolvency Requirements in Brokerage-Commission Disputes

Introduction

Silber Investment Properties, Ltd. (“Plaintiff”), a licensed real-estate broker, sued BJG Islandia Realty, LLC and individual principals (collectively “Defendants”) to recover a commission allegedly earned under an oral brokerage agreement. The Plaintiff claimed it procured a ready, willing, and able buyer for real property owned by BJG and was owed a 4% commission on an $8.8 million sale. The trial court granted Defendants’ CPLR 3211(a)(1) and (7) motion to dismiss all claims. On March 19, 2025, the Appellate Division, Second Department, modified and affirmed in part, holding that dismissal of the breach-of-contract, quantum meruit, and unjust enrichment counts was improper, but affirming dismissal of causes of action under Debtor & Creditor Law (DCL) §§ 273, 274, 276, 276-a and of a breach-of-trust claim.

Summary of the Judgment

The Court held Kukiela’s affidavit was not “documentary evidence” under CPLR 3211(a)(1), so dismissal on that ground was improper.
Even considering documentary exhibits, Defendants failed to “utterly refute” Plaintiff’s allegations of an oral agreement or to establish a conclusive defense.
Under CPLR 3211(a)(7), the record revealed a bona-fide dispute over the agreement’s existence and terms, precluding dismissal of breach-of-contract, quantum meruit, and unjust enrichment claims.
The Court confirmed that the 2019 Uniform Voidable Transactions Act (UVTA) governs post-April 4 2020 transfers, replacing former DCL fraud provisions.
Plaintiff’s DCL §§ 273 and 274 claims failed for insufficient allegations that the transfer rendered BJG insolvent or was made without reasonably equivalent value.
Related claims under DCL §§ 276 and 276-a and an in-effect breach-of-trust cause of action were properly dismissed as unsupported by factual allegations.

Analysis

1. Precedents Cited

The Court relied on leading CPLR 3211 authorities to define “documentary evidence” and the standard for dismissal:

Mohawk Constr. & Supply Co. v. Walsh/Consigli JV, 222 A.D.3d 965: Documentary proof must “utterly refute” plaintiff’s allegations to support § 3211(a)(1) dismissal.
Bianco v. Law Offices of Yuri Prakhin, 189 A.D.3d 1326: Letters, emails, affidavits generally do not qualify as “documentary evidence.”
Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314: § 3211(a)(1) motion must conclusively establish a defense “as a matter of law.”
Agai v. Liberty Mut. Agency Corp., 118 A.D.3d 830: Under § 3211(a)(7), a material factual dispute precludes dismissal.
Rusciano Realty Servs. v. Griffler, 62 N.Y.2d 696: Brokers and sellers remain free to negotiate commission terms.

For the Debtor & Creditor Law discussion, the Court addressed the repeal and replacement of former §§ 273–276-a by the UVTA:

Uniform Voidable Transactions Act, L 2019, ch 580 (eff. Apr. 4 2020): Repealed and supplanted pre-2020 fraudulent-conveyance provisions of DCL Art. 10.
L & M 353 Franklyn Ave. LLC v. Steinman, 202 A.D.3d 440: Transfers after April 4 2020 are governed by the UVTA.

2. Legal Reasoning

a. CPLR 3211(a)(1) Documentary Evidence Standard

Under CPLR 3211(a)(1), a moving party must submit “undeniable, authentic, unambiguous” paper evidence that conclusively disproves plaintiffs’ claims. Aldavation of Kukiela’s affidavit as non-documentary meant the trial court erred by treating it as such. No submitted contract or clear correspondence showed the absence of an oral broker agreement or the incorrect commission rate.

b. CPLR 3211(a)(7) Factual Dispute Standard

On a § 3211(a)(7) motion, the Court considers evidentiary materials but does not convert to summary judgment. Where the record reveals a “fundamental dispute” as to contract existence and terms, dismissal is improper. Here, Plaintiff and Defendants directly contested whether a 4% commission was agreed and which broker procured the sale.

c. Alternate Recovery in Quantum Meruit and Unjust Enrichment

New York law permits a broker to plead unjust enrichment or quantum meruit when there is a bona fide dispute over contract terms or existence (Emby Hosiery Corp. v. Tawil, 196 A.D.3d 462). The Court affirmed Plaintiff’s right to pursue alternate remedies on the same facts.

d. Debtor & Creditor Law and the UVTA

The Court clarified that the UVTA’s version of DCL §§ 273–274 governs transfers after April 4, 2020. To state a UVTA claim, a plaintiff must allege:

Actual intent to defraud or transfer without “reasonably equivalent value” under § 273.
Insolvency at the time of transfer or resulting from it, under §§ 273(b)(9) and 274(a).

Plaintiff’s boilerplate assertion—that net sale proceeds disbursed to individual defendants rendered BJG insolvent—was insufficient to plead either element. Consequently, claims under §§ 273, 274, 276, 276-a and an implied breach-of-trust cause were properly dismissed.

3. Impact

This decision offers key guidance for brokers and litigants in:

Opposing or bringing CPLR 3211 motions: Highlighting the narrow class of “documentary evidence” and the necessity of conclusive proof to dismiss contract claims.
Structuring pleadings: Confirming that oral brokerage agreements can survive early motions when disputed and that quantum meruit/unjust enrichment remain viable alternates.
Pursuing UVTA claims: Requiring detailed allegations of insolvency and lack of reasonably equivalent value for fraudulent‐transfer actions under modern DCL Art. 10.

Complex Concepts Simplified

“Documentary Evidence” (CPLR 3211(a)(1)): Only papers that are clear, authentic, and indisputable—e.g., fully executed contracts or recorded conveyances. Emails, affidavits, and deposition excerpts generally do not qualify.
“CPLR 3211(a)(7) Motion”: A defense motion to dismiss for failure to state a cause of action. Courts may consider evidentiary materials but cannot resolve genuine factual disputes.
Quantum Meruit / Unjust Enrichment: Equitable claims allowing recovery for services performed when contract existence or terms are disputed.
Uniform Voidable Transactions Act (UVTA): Enacted in 2019, it modernizes New York’s fraudulent‐conveyance law. To pursue a UVTA cause of action, a creditor must allege actual intent to defraud or lack of equivalent value, plus insolvency.

Conclusion

Silber Inv. Props. v. BJG Islandia Realty clarifies that early dismissal under CPLR 3211 demands exacting proof when documentary evidence is invoked and underlines that genuine disputes over oral brokerage agreements warrant full adjudication. It also underscores the UVTA’s stringent insolvency and value requirements for fraudulent-transfer claims under DCL. As a result, the decision strengthens brokers’ ability to plead and survive motions to dismiss while providing creditors a roadmap for satisfying UVTA pleading standards.