CPLR 3211(a)(1) allows a defendant to “move for judgment dismissing one or more causes of action asserted against him on the ground that . . . a defense is founded upon documentary evidence.” The CPLR does not define the phrase “documentary evidence.” Commentators on the CPLR have attempted to fill the void by offering their own take on the issue. And the First and Second Departments have split on whether certain types of paper qualify as “documentary evidence.” The First Department has taken a flexible approach, holding that documents that are “essentially undeniable” constitute “documentary evidence.” The Second Department has taken a more categorical approach, holding that emails and correspondence such as letters do not constitute “documentary evidence.” Even in the First Department, however, motions to dismiss on the basis of documentary evidence are held to an exacting standard, and an email will not support dismissal if does not conclusively refute the asserted claim.
A claim will be dismissed under CPLR 3211(a)(1) where “documentary evidence submitted conclusively establishe[s] a defense to the asserted claims as a matter of law." The phrase “documentary evidence” is not defined in the CPLR.
In the First Department, “[t]o qualify as ‘documentary,’ the paper’s content must be essentially undeniable and, assuming the verity of the paper, and the validity of its execution, will itself support the ground on which the motion is based.” In the Second Department, the test was recently stated as follows: “in order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable.”
Commentary on the Rule
According to the Advisory Committee on Civil Practice, a standing advisory committee established by the Chief Administrative Judge of the courts, CPLR 3211(a)(1) “was added to cover something like a defense based on the terms of a written contract.” Siegel observes that “[t]his was not a basis for dismissal under the pre-CPLR law,” and “there is not much to tell us what qualifies as ‘documentary’ under this paragraph.”
Higgitt cautions in his practice commentaries that, although the ordinary meaning of the phrase “documentary evidence” would suggest that “anything reduced to paper could qualify[,] . . . ‘[d]ocumentary evidence’ actually encompasses precious few documents, making CPLR 3211(a)(1) a decidedly narrow ground on which to seek dismissal.”
Higgitt further observes that “medical records, letters, newspaper articles, printouts of Internet web pages, and transcripts of radio and television interviews” “do not quality as ‘documentary’” evidence, whereas “contracts, deeds, leases, mortgages, stipulations of settlement, and judicial records can fall on the ‘documentary evidence’ side of the ledger.” Even if the evidence is considered “documentary,” Higgitt notes that the evidence must conclusively refute or establish a defense to the cause of action for dismissal to be granted.
To avoid “a skirmish over whether the (a)(1) motion is founded on the proper character of evidence,” Higgitt has suggested that defendants also consider relying on CPLR 3211(a)(7) when seeking dismissal based on evidence they believe conclusively refutes the plaintiff’s claims. CPLR 3211(a)(7) provides a separate ground for dismissal where “the pleading fails to state a cause of action.” Siegel similarly proposes that “a defendant relying on an email should consider invoking both subdivisions (a)(1) and (a)(7) in a CPLR 3211 motion.”
As commentators have observed, courts are generally limited to “an examination of the pleadings to determine whether they state a cause of action” on a motion to dismiss under CPLR 3211(a)(7). However, evidence beyond the pleadings may be considered in connection with CPLR 3211(a)(7) motions in limited circumstances where the evidence “establish[es] conclusively that plaintiff has no cause of action.”
The Split of Authority
Although the First and Second Departments agree that an affidavit does not meet the requirements for “documentary evidence,” the departments diverge with respect to whether an email or other correspondence such as a letter can constitute “documentary evidence” under CPLR 3211(a)(1).
The Second Department has repeatedly held that letters and emails simply “fail to meet the requirements for documentary evidence.” For example, in affirming the denial of a motion to dismiss in Zellner v. Odyl, LLC, the Second Department stated: “the email messages submitted by the defendant did not constitute ‘documentary evidence’ for the purposes of CPLR 3211 (a)(1).”
The Second Department’s decision in Cives Corp. v. George A. Fuller Co., Inc. is instructive. In Cives, the plaintiff sued Fuller, a general contractor, and Liberty Mutual Insurance Company for payment on invoices relating to a construction project. Liberty Mutual moved for dismiss under CPLR 3211(a)(1) based on “various letters and emails” that it claimed demonstrated that the payment bond asserted against it had never become effective. The Second Department reversed the trial court’s grant of dismissal, holding that “the letters and emails submitted by Liberty did not constitute ‘documentary evidence’ under CPLR 3211(a)(1) and, thus, should not have been considered by the Supreme Court.”
The First Department takes a less absolute approach to email evidence. As the court stated in Kolchins v. Evolution Mkts., Inc., “there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute.” Thus, “emails can qualify as documentary evidence if they meet the ‘essentially undeniable’ test.” The same is true of letters.
However, even in the First Department, emails that do not “utterly refute plaintiff’s factual allegations” and “conclusively establish a defense to the asserted claims as a matter of law” still will not support a motion to dismiss under CPLR 3211(a)(1). Thus, emails can qualify as documentary evidence in the First Department, but only in the right case.
A recent decision by Justice Barry Ostrager of the New York County Commercial Division in Berkowitz v. Christie’s Inc. is illustrative. In Berkowitz, the trustees of Elizabeth Taylor’s estate sued the auction house Christie’s for breach of contract, declaratory judgment, and breach of fiduciary duty, among other claims, after Christie’s rescinded the $8.8 million sale of the “Taj Mahal Diamond” from the Taylor estate. The consignment agreement between Christie’s and the estate contained a provision permitting Christie's to rescind a sale “‘at any time if Christie’s in [its] reasonable judgment determines that the offering for sale of any Property has subjected or may subject Christie's and/or Seller to any liability, including liability under warranty of authenticity or title.’” The trustees argued that Christie’s cancelled the sale, not due to any bona fide concern that the sale subjected Christie’s or the seller to liability, but “to appease the buyer” who was “a frequent bidder at Christie’s auctions” and had “refused to bid in other upcoming auctions until the Diamond purchase was cancelled.”
In support of its motion to dismiss the declaratory judgment claim under CPLR 3211(a)(1) and (a)(7), Christie’s submitted “several emails between Christie's executives and Christie's general counsel evidencing concern that the buyer could bring a meritorious action against Christie's based on alleged misrepresentations it had made about the Diamond at the Auction.” These emails were proffered in an effort to show that Christie’s had a reasonable belief that the sale could subject it to liability.
Although the court considered the substance of the emails submitted by Christie’s, Justice Ostrager concluded that “[t]he documentary evidence—while powerful—is not without some ambiguity, and fails to conclusively rebut Plaintiffs' claims.” The court noted that “according to emails between Christie's executives, there appears to  have been at least some concern regarding ‘client Relations’ and some equivocation as to the strength of Christie’s legal position in a potential dispute with the Diamond's buyer.” The Berkowitz decision highlights the exacting standard a defendant faces when seeking dismissal under CPLR 3211(a)(1) based on documentary evidence.
Another recent New York County Commercial Division decision by Justice Jeffrey Oing, WL Ross & Co. LLC v. Storper, demonstrates that an email will not constitute documentary evidence where it does not conclusively demonstrate grounds for dismissal. In WL Ross & Co., an investment firm sued Storper, a former senior managing director, for breach of non-compete clauses in the parties’ agreements. Storper moved to dismiss under theories of waiver, laches and equitable estoppel, pointing to an email from his former employer congratulating him on the formation of his new merchant banking business and suggesting that the parties explore co-investments. Justice Oing rejected this evidence, because it did “not conclusively establish any of defendant's defenses.” As in Berkowitz, while the defendant’s email may have some probative value, it was not conclusive and thus could not support a motion to dismiss under CPLR 3211(a)(1).
Although decisions denying motions to dismiss under 3211(a)(1) abound, emails can still be valuable on such motions when they irrefutably demonstrate an objective fact fatal to a claim. For example, in Chambers v. Weinstein, Justice Peter Sherwood of the New York County Commercial Division held that emails demonstrating that a defendant was still negotiating a transaction during February to April 2012 conclusively established that the same defendant did not know that the transaction had actually terminated in 2011, and therefore could not have aided and abetted fraud. And in Hansen-Nord v. Youmans, New York County Commercial Division Justice Anil Singh found that an email from plaintiff plainly showing that she was acting as her own attorney disproved that she had an attorney-client relationship with the attorney-defendants at the relevant time, and thus conclusively refuted her malpractice claim.
The time may be ripe for the Court of Appeals to resolve the split of authority between the First and Second Departments on whether emails can quality as documentary evidence under CPLR 3211(a)(1), particularly since so much business today is conducted via email. Indeed, emails are even used in some circumstances to form contracts.
The First Department’s rule properly places substance over form by permitting courts to consider electronic communications as documentary evidence so long as they are essentially undeniable and conclusively establish a defense. The rule leaves the door open for defendants to bring CPLR 3211(a)(1) motions based on other electronic communications such as text messages.