TEITLER v. MAX POLLACK SONS (2001)

In an action to recover damages for negligence and breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated January 22, 2001, which denied its motion pursuant to CPLR 3211(a)(1), (5), and (8) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, the branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) is granted, the balance of the motion is denied as academic, and the complaint is dismissed.

 To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see, Held v. Kaufman, 91 N.Y.2d 425, 430-431, 671 N.Y.S.2d 429, 694 N.E.2d 430;  Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Museum Trading Co. v. Bantry, 281 A.D.2d 524, 721 N.Y.S.2d 822;  Jaslow v. Pep Boys-Manny, Moe & Jack, 279 A.D.2d 611, 719 N.Y.S.2d 881;  Brunot v. Eisenberger & Co., 266 A.D.2d 421, 698 N.Y.S.2d 882).   The unrefuted documentary evidence submitted by the defendant established that the plaintiff was denied insurance coverage by his insurer because he failed to cooperate in the investigation of his claim, not because of any alleged errors made by the defendant in preparing and submitting the plaintiff's application for insurance as alleged in the complaint.   Thus, the defendant's motion to dismiss should have been granted.   In light of this determination, we need not address the other grounds of the defendant's motion to dismiss.