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MORGENTHOW v. BANK OF N.Y.

305 A.D.2d 74 (2003)

760 N.Y.S.2d 438

MORGENTHOW & LATHAM et al., Respondents, v. BANK OF NEW YORK COMPANY, INC., et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 20, 2003.

Attorney(s) appearing for the Case

Mark E. Herlihy and Harold M. Hoffman for respondents.

Richard H. Klapper of counsel (John L. Warden, Marc De Leeuw and Kieran B. Morrow on the brief; Sullivan & Cromwell LLP, attorneys), for appellants.

TOM, J.P., SULLIVAN, ELLERIN and MARLOW, JJ., concur.

OPINION OF THE COURT

GONZALEZ, J.

This appeal by defendant The Bank of New York (BNY) from Supreme Court's denial of its CPLR 3211 (a) (1) motion to dismiss requires us to determine whether certain judicial admissions by plaintiffs' agent in a pending federal action constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1), and if so, whether that evidence flatly contradicts plaintiffs' allegations of justifiable reliance in support of their...

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