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COG-NET BUILDING CORP. v. TRAVELERS INDEMNITY COMPANY

2010-09825.

86 A.D.3d 585 (2011)

927 N.Y.S.2d 669

2011 NY Slip Op 6014

COG-NET BUILDING CORP., Respondent, v. TRAVELERS INDEMNITY COMPANY, Defendant, and RUSSO PICCIURRO MALOY, LLC, Doing Business as RPM INSURANCE AGENCY, Appellant.

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

Decided July 19, 2011.

Ordered that the order is affirmed, with costs.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiff's allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; Rietschel v Maimonides Med. Ctr.,

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