REINALDO E. RIVERA
Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Brendan T. Fitzpatrick of counsel), for appellant. Garcia & Stallone, Deer Park, N.Y. (Eric N. Bailey of counsel), for respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs Leighton House Condominium and Cooper Square Realty, Inc., in an underlying action entitled Bonaerge v. Leighton House Condominium, et al., pending in the Supreme Court, Bronx County, under Index No. 30651/09, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated March 25, 2011, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
To successfully move to dismiss a complaint pursuant to CPLR 3211(a)(1), the movant must present documentary evidence that “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim” ( Nevin v. Laclede Professional Prods., 273 A.D.2d 453, 453, 711 N.Y.S.2d 735;see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Granada Condominium III. Assn. v. Palomino, 78 A.D.3d 996, 996, 913 N.Y.S.2d 668). In support of its motion, the defendant failed to present documentary evidence conclusively establishing a defense as a matter of law. Accordingly, the Supreme Court properly denied the defendant's motion.
Contrary to the defendant's contention, we do not construe certain language contained in the order appealed from as constituting a finding of fact that the insureds provided timely notice of the claim to the defendant.