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LOEVNER v. LOEVNER

2010-06786.

81 A.D.3d 791 (2011)

916 N.Y.S.2d 820

SUZANNE LOEVNER, Respondent, v. RICHARD LOEVNER, Appellant.

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

Decided February 15, 2011.

Ordered that the order is affirmed, with costs.

On this motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint based on a defense founded upon documentary evidence, the defendant failed to sustain his burden of coming forward with documentary evidence which "utterly refutes [the] 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

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