Ordered that the order is affirmed, with costs.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594). As the Supreme Court correctly concluded, the complaint contains sufficient allegations to state a cognizable cause of action against the appellant, which is not definitively refuted by documentary evidence.