On January 17, 2023, the First Department issued a decision in Melrose Assoc. L.P. v. Floral Assoc. L.P., 2023 NY Slip Op. 00181, holding that an affidavit is not documentary evidence for purposes of CPLR 3211(a)(1), explaining:
None of the evidence that plaintiff presented on its motion conclusively established a defense to the counterclaims as a matter of law. Although plaintiff relies on an affidavit from its secretary as evidence that defendants initiated a $750,000 payment to Melrose and therefore waived any objection to making the payment, that affidavit does not constitute conclusive documentary evidence.
(Internal citations omitted).