NEVIN v. LACLEDE PROFESSIONAL PRODUCTS, INC

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 N.Y.2d 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 N.Y.2d 83, 87-88; Brunot v. Joe Eisenberger Co., 266 A.D.2d 421). Further, with respect to the branch of the defendant's motion to dismiss pursuant to CPLR 3211(a)(7), we find that the complaint states a cause of action.