Opinion
Argued May 16, 2000.
July 26, 2000.
In an action, inter alia, to enforce an option to purchase stock pursuant to a letter of agreement, the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), entered July 29, 1999, which denied its motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.
Sulmeyer, Kupetz, Baumann Rithman, Los Angeles, Ca. (Alan G. Tippie and Howard N. Madris of counsel) and Graubard Mollen Miller, N.Y., N.Y. (Edward H. Pomeranz and John J. Malley of counsel), for appellant (one brief filed).
Bland Rome Tenzer Greenblatt, LLP, New York, N.Y. (Martin P. Unger and Matthew K. Breitman of counsel), for respondent.
Before: DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
"Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss" (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635). With respect to the branch of the defendant's motion to dismiss pursuant to CPLR 3211(a)(1) the defendant failed to meet its burden of showing that the documentary evidence submitted resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88; Brunot v. Joe Eisenberger Co., 266 A.D.2d 421). Further, with respect to the branch of the defendant's motion to dismiss pursuant to CPLR 3211(a)(7), we find that the complaint states a cause of action.