On July 30, 2025, the Second Department issued a decision in All Nations Steel Corp. v. KSK Constr. Group, LLC, 2025 NY Slip Op. 04449, holding that affidavits are not CPLR 3211(a)(1) documentary evidence, explaining:
A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Affidavits, deposition testimony, and letters are not considered documentary evidence within the intendment of CPLR 3211(a)(1).
Here, the Supreme Court properly denied dismissal of the complaint insofar as asserted against the defendants pursuant to CPLR 3211(a)(1). The affidavits submitted by the defendants in support of their motion did not constitute documentary evidence within the intendment of CPLR 3211(a)(1).
(Internal quotations and citations omitted).