Motion to Dismiss Based on Documentary Evidence

In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the defense of release.  In a case arising out of the Commercial Division in Kings County (Hon. Sylvia G. Ash), a question on appeal was whether the defense of release is considered “documentary

CPLR 3211(a)(1) provides for the dismissal of a claim so long as the defense is based upon “documentary evidence”.  We’ve seen this used successfully in mortgage note cases, (e.g., Bronxville Knolls, Inc. v. Webster Town Center Partnership, [1st Dep’t 1995]), as well as lease litigation (e.g., 150 Broadway N.Y. Assocs., L.P. v. Bodner