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SUCHMACHER v. GROCERY

2009-07823.

73 A.D.3d 1017 (2010)

900 N.Y.S.2d 686

ALBERT SUCHMACHER et al., Respondents, v. MANANA GROCERY et al., Defendants, and CARMEN WEBB, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided May 18, 2010.

Ordered that the order is affirmed, with costs.

A CPLR 3211(a)(1) motion to dismiss based on documentary evidence 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 [2002]; see Leon v Martinez, 84 N.Y.2d 83

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