Bath & Twenty, LLC v. Fed. Sav. Bank

198 A.D.3d 855

156 N.Y.S.3d 316

BATH & TWENTY, LLC, et al., appellants,

v.FEDERAL SAVINGS BANK, et al., respondents.

2018–01155

Index No. 514138/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 23, 2021

October 20, 2021

Tsyngauz & Associates, P.C., New York, N.Y. (Simon I. Malinowski and Eleazar Jacobs of counsel), for appellants.

Offit Kurman, P.A., New York, N.Y. (Brendan Marx of counsel), for respondents.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated December 4, 2017. The order, insofar as appealed from, granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the causes of action in the amended complaint alleging fraudulent inducement, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs were the owners of various pieces of real property. In 2016, the plaintiffs sought to obtain a loan from the defendant Federal Savings Bank (hereinafter FSB). The plaintiffs and FSB agreed to a loan in the amount of $2,650,000, and as collateral, the plaintiffs agreed to pledge five parcels of real property, including a parcel of real property which was located on Ocean Avenue in Brooklyn (hereinafter the Ocean Avenue property). The defendants recorded the mortgage against all five properties.

On July 21, 2017, the plaintiffs commenced the instant action against the defendants. The plaintiffs later filed an amended complaint asserting causes of action alleging breach of contract, fraudulent inducement, and breach of the implied covenant of good faith and fair dealing. The plaintiffs alleged, inter alia, that the defendants had agreed to only record the mortgage against the Ocean Avenue property. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint. In an order dated December 4, 2017, the Supreme Court granted the motion. The plaintiffs appeal.

" ‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( Burgos v. New York Presbyt. Hosp., 155 A.D.3d 598, 599, 65 N.Y.S.3d 45, quoting Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ). To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable (see JPMorgan Chase Bank, N.A. v. Klein, 178 A.D.3d 788, 790, 113 N.Y.S.3d 741 ). " ‘Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case’ " ( id. at 790, 113 N.Y.S.3d 741, quoting Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 941, 18 N.Y.S.3d 683 ). Letters, emails, and affidavits are not documentary evidence (see Shah v. Mitra, 171 A.D.3d 971, 973, 98 N.Y.S.3d 197 ).

Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the...