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The New York Commercial Division courts have frequently grappled with determining the meaning of “documentary evidence” under CPLR Rule 3211(a)(1), which permits a party to move to dismiss a claim on the ground that “a defense is founded upon documentary evidence.” As the CPLR does not define the phrase “documentary evidence,” courts have observed that, as used in the statute, “'documentary evidence' is a 'fuzzy' term, and what is documentary evidence for one purpose, might not be documentary evidence for another.” Fontanetta v. Doe, 73 A.D.3d 78, 84, 898 N.Y.S.2d 569, 574 (2d Dep't 2010). More recently, with the overwhelming use of electronic communications, both the Appellate Division and Commercial Division have faced the question of whether emails, as well as other types of correspondence such as letters, may qualify as Rule 3211(a)(1) documentary evidence.

This column addresses the New York Court of Appeals' recent decision evaluating documentary evidence consisting of emails and compatible correspondence, and the likely impact of that ruling on future Commercial Division courts addressing this issue.

CPLR 3211(a)(1) Documentary Evidence

CPLR 3211(a)(1) allows a party to seek dismissal of one or more causes of action based on a defense “founded upon documentary evidence.” To be considered documentary evidence, the evidence must be “unambiguous, authentic, and undeniable.” Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67, 69 (2d Dep't 2017). Further, even where a defendant's submissions qualify as documentary evidence, “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law.”  Amsterdam Hosp. Grp. v. Marshall-Alan Assocs., 120 A.D.3d 431, 433, 992 N.Y.S.2d 2, 4-5 (1st Dep't 2014).

Departmental Split

Commercial Division courts within the First and Second Departments have agreed that what qualifies as documentary evidence under CPLR 3211(a)(1) includes “judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable.'” Fontanetta, 73 A.D.3d at 84, 898 N.Y.S.2d at 574; see Amsterdam Hosp., 120 A.D.3d at 433, 992 N.Y.S.2d at 4-5. In recent years, the First and Second Departments, and corresponding Commercial Division courts, have diverged as to whether emails and other correspondence may also qualify as documentary evidence under CPLR 3211(a)(1).

The First Department has recognized that “[i]n our electronic age, emails can qualify as documentary evidence if they meet the 'essentially undeniable' test.” Amsterdam Hosp., 120 A.D.3d at 433, 992 N.Y.S.2d at 4. Thus, “[e]mail correspondence can, in a proper case, suffice as documentary evidence for purposes of CPLR 3211(a)(1).” Art & Fashion Grp. Corp. v. Cyclops Prod., 120 A.D.3d 436, 438, 992 N.Y.S.2d 7, 10 (1st Dep't 2014). Numerous Commercial Division courts within the First Department have followed the First Department's approach and considered emails as permissible documentary evidence on CPLR 3211(a)(1) motions to dismiss.

For example, in Petito v. Law Offices of Bart J. Eagle, Justice Andrea Masley of the New York County Commercial Division considered email correspondence submitted by the defendants on their CPLR 3211(a)(1) motion. 2018 N.Y. Slip Op. 30499(U), at *3-5 (N.Y. Co. Mar. 28, 2018). There, the plaintiff alleged that, due to the defendants' legal advice, he failed to pay contributions to his business and consequently lost shares in the company. In support of their motion to dismiss, the defendants submitted earlier affidavits by the plaintiff and email correspondence to show that the plaintiff lost his shares due to his inability to pay. Although the plaintiff argued that emails were not permissible on a CPLR 3211(a)(1) motion, Justice Masley noted that the First Department has held otherwise. Relying on First Department precedent, the court considered the email correspondence as “documentary evidence” and found that the evidence conclusively established that the proximate cause of the plaintiff's damage was plaintiff's inability to pay contributions, and therefore granted the defendants' motion to dismiss.

Parting from the First Department, Commercial Division courts within the Second Department have consistently followed the Second Department's more rigid approach and maintained that emails and letters are not documentary evidence under CPLR 3211(a)(1) and should not be considered on such motions. For example, in JBGR v. Chicago Title Ins. Co., Justice Elizabeth H. Emerson of the Suffolk County Commercial Division found that “[a]ffidavits are not documentary evidence, nor are letters and e-mails.” 2013 N.Y. Slip Op. 50089(U), at *4 (Suffolk Co. Jan. 17, 2013), aff'd, 128 A.D.3d 900, 11 N.Y.S.3d 83 (2d Dep't 2015). In JBGR, the defendant submitted an affidavit and several letters and emails in support of its CPLR 3211(a)(1) motion to dismiss. Without needing to undergo further analysis, Justice Emerson denied the motion and refused to consider the potential substantive value of the defendant's proffered letters and emails given they did not constitute “documentary evidence within the meaning of CPLR 3211(a)(1).”

Court of Appeals Guidance

In its March 29, 2018, decision, the New York Court of Appeals appeared to implicitly agree with the First Department's broader approach to the scope of documentary evidence under CPLR 3211(a)(1). In Kolchins v. Evolution Markets, the court considered whether documentary evidence proffered by the defendant on its CPLR 3211(a)(1) motion conclusively refuted the plaintiff's breach of contract claims. 31 N.Y.3d 100, 105, 96 N.E.3d 784, 787 (2018). There, the defendant's defense to the plaintiff's claims was premised upon documentary evidence, consisting of emails and other correspondence between the parties, which the defendant claimed established as a matter of law that the parties had not entered into an agreement. While the court did not directly address the precise question of whether emails qualify as proper documentary evidence, the court recognized the First Department's holding that “there is no blanket rule by which email is to be excluded from consideration as documentary evidence under [CPLR 3211(a)(1)].” The court ruled in favor of the plaintiff and affirmed the denial of defendant's motion to dismiss because the documentary evidence failed to conclusively refute contract formation, and a reasonable fact-finder could determine that a contract was formed.

Importantly, while the court ultimately held the defendant's documentary evidence failed to warrant dismissal of the plaintiff's claims, the court's analysis suggests it implicitly recognized that a party moving to dismiss can rely upon emails and correspondence when such documentary evidence conclusively establishes a defense to the asserted claims as a matter of law. Thus, the court took no apparent issue with considering emails and other correspondence as documentary evidence on a CPLR 3211(a)(1) motion to dismiss.

Decisions After 'Kolchins'

In the months since Kolchins, several Commercial Division courts have followed Kolchins' guidance and considered emails and similar correspondence as documentary evidence when deciding CPLR 3211(a)(1) motions. For example, in Jiang v. Ping An Insurance, Justice Masley dismissed a breach of contract claim based upon documentary evidence, consisting of several emails and letters, which established that the defendant was not a party or signatory to the contract. 2018 N.Y. Slip Op. 31534(U), at *5 (N.Y. Co. July 9, 2018). In Beatrice Investments v. 940 Realty, Justice Shirley Werner Kornreich of the New York County Commercial Division considered emails and letters as documentary evidence, but ultimately concluded that the evidence proffered did not conclusively establish a defense to the plaintiff's allegations. 2018 N.Y. Slip Op. 31008(U), at *8 (N.Y. Co. May 22, 2018). Similarly, in Duncan-Watt v. Rockefeller, Justice Masley again recognized that “an e-mail can suffice as documentary evidence,” but nonetheless concluded that the defendant's proffered emails and letters raised unresolved factual issues and, thus, failed to meet the essentially undeniable test. 2018 N.Y. Slip Op. 30678(U), at *8 (N.Y. Co. Apr. 16, 2018).

Conclusion

Given the Court of Appeals' apparent assent to the permissibility of emails constituting documentary evidence in Kolchins, Commercial Division courts are less likely to assess whether emails may qualify as documentary evidence, unless of course the opposing party can demonstrate some element of unreliability. Rather, given the undefined parameters of the “essentially undeniable” test, Commercial Division courts are likely to focus on the issue of when emails qualify as documentary evidence on CPLR 3211(a)(1) motions. Even if the courts agree that emails “can, in a proper case, suffice as documentary evidence,” uncertainty remains as to what qualifies as “a proper case” for a court to consider emails. In any event, even where a court accepts emails or similar correspondence as documentary evidence, litigants still must be prepared to establish that the proffered evidence “utterly refutes plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law.”

Thomas J. Hall and Judith A. Archer are partners with Norton Rose Fulbright US in New York.  Allison L. Silverman, an associate with the firm, assisted in the preparation of this article.