Museum Trading Co. v. Bantry

• Decision Date: 14 February 2001
• Citation: Museum Trading Co. v. Bantry, 721 N.Y.S.2d 822, 281 A.D.2d 524 (N.Y. App. Div. 2001)
• Parties: (A.D. 2 Dept. 2001) Museum Trading Co., appellant, v. Bryan Bantry, respondent, et al., defendants. 2000-05961 Submitted -
• Court: New York Supreme Court — Appellate Division

Page 822

721 N.Y.S.2d 822 (A.D. 2 Dept. 2001)

Museum Trading Co., appellant, v. Bryan Bantry, respondent, et al., defendants.

2000-05961

SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT

Submitted - February 14, 2001

March 19, 2001

Epstein, Becker & Green, New York, N.Y. (Stephen E. Powers of counsel), for appellant.

Jaroslawicz & Jaros, New York, N.Y. (David Jaroslawicz of counsel), for respondent.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated November 23, 1999, which granted the motion of the defendant Bryan Bantry pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Bryan Bantry.

The Supreme Court erred in granting the motion of the defendant Bryan Bantry (hereinafter the defendant) pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him. To the extent that the motion is considered to have been made 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 plaintiffs claim" (Scadura v Robillard, 256 A.D.2d 567; see, 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 did not resolve all factual issues as a matter of law.

To the extent that the motion is considered to have been made pursuant to CPLR 3211(a)(7), the defendant's evidentiary submissions failed to show that a material fact alleged by the plaintiff to be true "[was] not a fact at all" and that "no significant dispute exist[ed] regarding it" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275; see, Adams v O'Connor, 245 A.D.2d 537; CD Music Co. v...