Opinion
2012-10-4
J. Christopher FLOWERS, Plaintiff–Appellant, v. 73RD TOWNHOUSE LLC, et al., Defendants–Respondents.
Stroock & Stroock & Lavan, New York (Kevin L. Smith of counsel), for appellant. *394Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for respondents.
Stroock & Stroock & Lavan, New York (Kevin L. Smith of counsel), for appellant. *394Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for respondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 27, 2011, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
The documentary evidence submitted on the motion—namely, checks from the Law Offices of Milton S. Rinzler to certain defendants—failed to show conclusively that plaintiff's claims were time-barred. The affidavits submitted by defendants were not “documentary evidence” within the meaning of CPLR 3211(a)(1) ( see e.g. Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 997, 913 N.Y.S.2d 668 [2d Dept. 2010];Fontanetta v. John Doe 1, 73 A.D.3d 78, 85–86, 898 N.Y.S.2d 569 [2d Dept. 2010] ), and without the affidavits, it cannot be concluded that defendant 73rd Townhouse LLC made distributions that were protected by the statute of limitations in Limited Liability Company Law § 508(c).
On appeal, defendants argue only the statute of limitations. Accordingly, they have abandoned so much of their motion as was based on CPLR 3211(a)(7).