In a CPLR 3211(a)(1) motion, which is very popular in defense of legal malpractice claims, defendants will offer paper documents which they claim “utterly refute” the legal malpractice claim.  These motions are surprisingly (and disproportionately compared to other areas of tort law) effective.  However, all paper is not “documentary” as we see in First Choice Plumbing Corp. v Miller Law Offs., PLLC  2018 NY Slip Op 05825 [164 AD3d 756] August 22, 2018 Appellate Division, Second Department.

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; see Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). “[J]udicial 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” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851 [2015]; see Phillips v Taco Bell Corp., 152 AD3d 806, 807 [2017]; Prott v Lewin & Baglio, LLP, 150 AD3d 908, 909 [2017]; Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681, 682 [2017]).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211 (a) (1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.”