30TH PLACE HOLDINGS LLC v. 474431 ASSOCIATES (2008)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), dated April 19, 2007, as granted those branches of the defendant's motion pursuant to CPLR 3211(a)(1) and (7) which were to dismiss the first cause of action to recover for overpayment of rent and the second cause of action to recover security deposit interest.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) “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 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  see Ruby Falls, Inc. v. Ruby Falls Partners, LLC, 39 A.D.3d 619, 834 N.Y.S.2d 258).   Here, the net lease submitted by the defendant seller in support of the motion included a provision that limited its liability.   The provision stated that upon the sale of the subject property, the defendant seller would be “entirely freed and relieved of all existing and future covenants, obligations and liabilities.”   Since it was undisputed that the sale of the subject premises was final in May 2006, the documentary evidence conclusively established a defense to the plaintiff buyer's claims to recover damages under the first and second causes of action, which were to recover for overpayment of rent and to recover security deposit interest, respectively, pursuant to the net lease (see CPLR 3211[a];  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;  Selinger Enterprises, Inc. v. Cassuto, 50 A.D.3d 766, 860 N.Y.S.2d 533;  Sargent v. New York Daily News L.P., 42 A.D.3d 491, 840 N.Y.S.2d 101).

In light of the foregoing, the plaintiff's remaining contentions are academic.