Opinion
2017–07004 Index No. 618769/16
12-12-2018
ELITE LASER HAIR, INC., et al., Respondents, v. PERFECT BODY IMAGE, LLC, etc., et al., Appellants.
The Internicola Law Firm, P.C., Staten Island, N.Y. (Charles N. Internicola of counsel), for appellants.
The Internicola Law Firm, P.C., Staten Island, N.Y. (Charles N. Internicola of counsel), for appellants.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs commenced this action to recover damages for conversion, trespass to chattel, and fraud, alleging, inter alia, that "on or about October 23, 2013, and continuing for a period of time up to and including November 18, 2013," the defendants accessed the plaintiffs' computer data and accounts without their authority, thereby causing them damages. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court, inter alia, denied that branch of the defendants' motion. The defendants appeal.
The defendants assert that a sworn written statement given by one of the proprietors of the plaintiffs to the police constituted documentary evidence within the meaning of CPLR 3211(a)(1) and conclusively established that the causes of action to recover damages for conversion and trespass to chattel were time-barred, thus warranting dismissal of those causes of action. A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Attias v. Costiera , 120 A.D.3d 1281, 1282, 993 N.Y.S.2d 59 ; Rodolico v. Rubin & Licatesi, P.C. , 114 A.D.3d 923, 924–925, 981 N.Y.S.2d 144 ). "The evidence submitted in support of such motion must be documentary or the motion must be denied" ( Cives Corp. v. George A. Fuller Co., Inc. , 97 A.D.3d 713, 714, 948 N.Y.S.2d 658 [internal quotation marks omitted]; see Fontanetta v. John Doe 1 , 73 A.D.3d 78, 84, 898 N.Y.S.2d 569 ). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" ( Granada Condominium III Assn. v. Palomino , 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 [internal quotation marks omitted]; see Attias v. Costiera , 120 A.D.3d at 1283, 993 N.Y.S.2d 59 ; Cives Corp. v. George A. Fuller Co., Inc. , 97 A.D.3d at 714, 948 N.Y.S.2d 658 ). Here, the statement submitted by the defendants does not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see Attias v. Costiera , 120 A.D.3d at 1283, 993 N.Y.S.2d 59 ; Cives Corp. v. George A. Fuller Co., Inc. , 97 A.D.3d at 714, 948 N.Y.S.2d 658 ).
Moreover, contrary to the defendants' contention, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see CPLR 3211[a][7] ; Leon v. Martinez , 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ), the complaint sufficiently states a cause of action to recover damages for fraud (see CPLR 3016[b] ; Pludeman v. Northern Leasing Sys., Inc. , 10 N.Y.3d 486, 491–493, 860 N.Y.S.2d 422, 890 N.E.2d 184 ).
Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.
RIVERA, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.