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JOHNSON v. ASBERRY

653236/18. Appeal No. 12851. Case No. 2019-5390.

190 A.D.3d 491 (2021)

135 N.Y.S.3d 830

2021 NY Slip Op 00120

Melissa Johnson, Respondent, v. Tiffany Asberry, Appellant, et al., Defendant. Johnson & Asberry Communications, LLC, Nonparty Appellant.

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

Decided January 12, 2021.

Attorney(s) appearing for the Case

McGlashan Law Firm, P.C., New York ( Patrick McGlashan of counsel), for appellant.

Pryor Cashman LLP, New York ( James S. O'Brien, Jr. of counsel), for respondent.

Concur—Acosta, P.J., Webber, González, Scarpulla, JJ.

Asberry's arguments are unavailing, as ultimately they turn on the contentions in her opposition affidavit that she was acting in good faith in the company's best interests. Affidavits are not documentary evidence and are not appropriate proof on a CPLR 3211(a)(1) motion to dismiss (see Correa v Orient-Express Hotels, Inc., 84 A.D.3d 651, 651 [1st Dept 2011]; Williamson, Picket, Gross, Inc. v Hirschfeld, 92...

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