BRUNOT v. JOE EISENBERGER CO., INC

ORDERED that the order is affirmed insofar as appealed from, with costs to the plaintiff-respondent.

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 plaintiff's claim ( see, Scadura v. Robillard, 256 A.D.2d 567; Leon v. Martinez, 84 N.Y.2d 83, 87-88; Kalivia Food Corp. v. Hunts Point Coop. Mkt., 244 A.D.2d 460). Here, the documentary evidence submitted by the defendant in support of its motion failed to meet that burden.

BRACKEN, J.P., SANTUCCI, ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.