Teitler v. Max J. Pollack & Sons

• Decision Date: 13 November 2001
• Citation: Teitler v. Max J. Pollack & Sons, 288 AD2d 302, 733 NYS2d 122 (N.Y. App. Div. 2001)
• Court: New York Supreme Court — Appellate Division
• Parties: HARRY TEITLER, Respondent,<BR>v.<BR>MAX J. POLLACK & SONS, Appellant.

288 A.D.2d 302

733 N.Y.S.2d 122

HARRY TEITLER, Respondent,

v.MAX J. POLLACK & SONS, Appellant.

Decided November 13, 2001.

O'Brien, J. P., S. Miller, McGinity, Schmidt and Townes, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) is granted, the balance of the motion is denied as academic, and the complaint is dismissed.

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, Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Museum Trading Co. v Bantry, 281 AD2d 524; Jaslow v Pep Boys—Manny, Moe & Jack, 279 AD2d 611; Brunot v Eisenberger & Co., 266 AD2d 421). The unrefuted documentary evidence submitted by the defendant established that the plaintiff was denied insurance coverage by his insurer because he failed to cooperate in the investigation of his claim, not because of any alleged errors made by the defendant in...