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WIENER v. SPAHN

60 A.D.3d 586 (2009)

876 N.Y.S.2d 380

EDITH WIENER, as an Individual Partner of ABSAR GERARD ASSOCIATES and as Coexecutrix of JOHANNA W. ACKERMAN, Deceased, Respondent, v. LAURA SPAHN et al., Appellants.

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

Decided March 31, 2009.

Defendants are not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1), since they have not demonstrated that the documentary evidence definitively resolves all material issues of fact, thereby resulting in the failure of plaintiff's claim as a matter of law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144 [2002]; Foster v Kovner, 44 A.D.3d 23, 28 [2007...

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