On February 22, 2023, the Second Department issued a decision in Alleyne v. Rutland Dev. Group, Inc., 2023 NY Slip Op. 00975, holding that a motion to dismiss based on documentary evidence was properly denied notwithstanding the plaintiff’s heavy burden on summary judgment or trial, explaining:
Here, in support of its motion, Golden Bridge submitted, among other things, a notary’s certificate of acknowledgment attesting that the plaintiff had appeared before him on May 23, 2017, and executed the subject deed or acknowledged her execution thereof, a resolution by Rutland authorizing the plaintiff to borrow a sum of money from Golden Bridge on Rutland’s behalf, and bank checks dated May 24, 2017. Although Golden Bridge did proffer some evidence that the plaintiff may have received consideration as a result of the transfer of the property, Golden Bridge’s evidentiary submissions were insufficient to utterly refute the plaintiff’s allegations that the deed and other relevant documents were forged, she received no consideration, and she did not have any relationship to Rutland. On a motion for summary judgment, the plaintiff would have had to proffer evidence so clear and convincing as to amount to a moral certainty, in order to rebut the presumption, based on the notary’s certificate of acknowledgment, that the deed was duly executed. Here, however, on a motion to dismiss the complaint pursuant to CPLR 3211(a), the questions are whether the plaintiff has a cause of action and whether Golden Bridge conclusively established a defense as a matter of law. We conclude that Golden Bridge did not make the requisite showing to establish its entitlement to dismissal of the complaint insofar as asserted against it.
(Internal citations omitted).