On April 29, 2022, the Fourth Department issued a decision in Davis v. Evangelical Lutheran Church In Am., 2022 NY Slip Op. 02914, exploring the limits to documentary evidence under CPLR 3211(a)(1):
In order to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant must proffer documentary evidence that utterly refutes the factual allegations in the complaint, conclusively establishing a defense as a matter of law. 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. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1). Here, the documentary evidence submitted by defendant failed to utterly refute the factual allegations in the complaint, and we therefore conclude that the court properly denied the motion.
(Internal quotations and citations omitted).