| JP Morgan Chase Bank, N.A. v Balliraj |
| 2014 NY Slip Op 00484 [113 AD3d 821] |
| January 29, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| JP Morgan Chase Bank, N.A.,
Respondent, v Nirmala Balliraj et al., Appellants. (Action No. 1.) Residential Funding Company, LLC, Respondent, v Nirmala Balliraj et al., Appellants. (Action No. 2.) |
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Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), for respondent.
In related actions, inter alia, to reform a mortgage and deed, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated June 11, 2012, as denied that branch of their cross motion which was to dismiss the complaint in action No. 2 pursuant to CPLR 3211 (a) (1) and, in effect, denied that branch of their cross motion which was to dismiss the complaint in action No. 2 pursuant to CPLR 3211 (a) (4).
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss pursuant to CPLR 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520 [2010]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38 [2006]). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in action No. 2, Residential Funding Company, LLC, lacks standing.
The Supreme Court providently exercised its discretion by, in effect, denying that branch of the defendants' cross motion which was to dismiss the complaint in action No. 2 pursuant to CPLR 3211 (a) (4) (see Whitney v Whitney, 57 NY2d 731, 732 [1982]; Morgan Barrington Fin. Servs., Inc. v Nahzi, 85 AD3d 1135 [2011]; DAIJ, Inc. v Roth, 85 AD3d 959 [2011]; Liebert v TIAA-CREF, 34 AD3d 756, 757 [2006]). [*2]
The defendants' remaining contentions are without merit. Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.