Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affidavits/Affirmations annexed 1-2 Answering Affidavits/Affirmations 3 Reply Affidavits/Affirmations 4 Decision/Order In this action, Capital One Bank USA N.A., Capital One Financial Corporation (“COFC”), and Capital One Services, LLC (“COS”) (collectively, “Defendants”) move pursuant to CPLR 3211(a)(1) and CPLR (a)(7) for an order dismissing Kamal Ahmed’s (“Plaintiff”) complaint in its entirety. Plaintiff opposes Defendants’ motion to dismiss, and alternatively, seeks leave pursuant to CPLR 3025(b) to amend pleadings. BACKGROUND Plaintiff initiated this action by filing a summons and complaint against Defendants, alleging a cause of action arising out of Defendants’ negligence. Plaintiff claimed that Plaintiff and Sharmeen Ahmed, his wife, maintained joint accounts with Defendants (Compl. 5). Monies were transferred from Plaintiff’s savings account to Plaintiff’s checking account. Subsequently, funds were transferred from Plaintiff’s checking account to third-party accounts via wire transfer and Zelle (Compl. 9). Plaintiff alleged that Plaintiff did not authorize or have any prior knowledge of these transactions. Plaintiff averred that the “above-mentioned occurrence and the results thereof were caused by the negligence of Defendant 1, Capital One Bank N.A, [sic] who inadequately managed the Plaintiff’s Accounts and failed to ensure that money entrusted to Defendant was safe” (Compl. 12). Defendants contend that Plaintiff named the wrong entities as defendants. Defendants allege that Plaintiff’s “allegations and sole claim of negligence are erroneously directed at a non-party entity, Capital One Bank, N.A. [] that is not a named Defendant[]” (See, Def.’s Memo of Law). Defendants assert that the proper defendant should be Capital One, N.A. (“ CONA”) (Id.). Defendants contend that “even if the Complaint did name the proper Defendant that Plaintiff banked with, Capital One, N.A., the negligence claim would fail as a matter of law[]” (Id.). DISCUSSION Defendants’ Motion to Dismiss Pursuant to CPLR 3211(a)(1) A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the “documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Scadura v. Robillard, 256 A.D.2d 567, 567 [2d Dept 1998]). “In order for evidence to qualify as ‘documentary’, it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996-997 [2d Dept 2010]; Karpovich v. City of New York, 162 A.D.3d 996 [2d Dept. 2018]). “[T]he evidence must be essentially unassailable” (JPMorgan Chase Bank, N.A. v. Klein, 178 A.D.3d 788, 790 [2d Dept 2010] [internal quotation marks omitted]). Documentary evidence includes “judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and other papers, the contents of which are essentially undeniable” (Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 [2d Dept 2017]). The Appellate Division, Second Department has concluded that “[a]ffidavits and letters ‘were not the types of documents contemplated by the Legislature when it enacted this provision’” (Anderson v. Armentano, 139 A.D.3d 769, 771 [2d Dept 2016] [quoting Fontanetta v. John Doe 1, 73 A.D.3d at 85]). “Affidavits are not documentary evidence because their contents can be controverted by other evidence[]” (Phillips v. Taco Bell Corp., 152 A.D.3d at 807 [2d Dept 2017]). Likewise, letters and emails do not meet the requirements for documentary evidence (See, Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872 [2d Dept 2023] [letter from decedent found to be inadmissible]). Thus, a motion to dismiss must be denied when the evidence submitted in support of the motion is not documentary (CPLR 3211[a][1]; See, Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908 [2nd Dept. 2017]). In the instant motion, Defendants have not identified the documentary evidence upon which Defendants base their motion to dismiss pursuant to CPLR 3211(a)(1). Defendants have not annexed, to their motion, any judicial records or documents reflecting out-of-court transactions for the Court’s review. Nonetheless, the Court now evaluates the documents which Defendants have referenced or submitted, in order to determine whether those documents qualify as documentary evidence within the definition of CPLR 3211(a)(1). First, Defendants’ motion makes a vague reference to “Account Disclosures which govern Plaintiff’s Accounts.” In addition, Defendants’ motion includes two identical footnotes stating “Capital One, N.A. Simply Checking Account Disclosures and Simply Checking Agreement, https://www.capitalone.com/bank/disclosures/checking-accounts/simply-checking/…” and “Capital One, N.A. Savings Disclosures and Savings Agreement, https://www.capitalone.com/bank/disclosures/savings-accounts/online-savings-account/…” (the terms and conditions found at these hyperlinks, collectively, the “Online Terms and Conditions”). Defendants omit any argument as to how the Online Terms and Conditions qualify as documentary evidence. Even if the Court were to consider the Online Terms and Conditions to be a contract reflecting an out-of-court transaction between the parties, the Online Terms and Conditions are not “papers, the contents of which are essentially undeniable” (Phillips v. Taco Bell Corp., 152 A.D.3d at 807). Similar to emails, the Online Terms and Conditions are in electronic format. Relatedly, the Online Terms and Conditions are digitally generated. CONA may post new terms on its website at any time, unilaterally amending the Online Terms and Conditions. As of the date of this decision, the “Termination of agreement” sections of the Terms and Conditions permit CONA to “amend or change the terms…without advance notice…[.]“ Currently, the Online Terms and Conditions state that they are effective as of March 29, 2024 and March 27, 2024, for CONA’s Simply Checking Account and 360 Savings Account products, respectively. Although Plaintiff had received letters notifying Plaintiff that Plaintiff’s accounts were closed, those letters were dated February 26, 2023 (See, Compl. Exhibit). This is more than one year prior to the effective dates of the Online Terms and Conditions. It is unclear whether Plaintiff even held the same type of accounts as those governed by the Online Terms and Conditions. Even if Defendants had annexed, to their motion, a printout of the Online Terms and Conditions, any such printouts of CONA’s webpages would not have qualified as conclusive documentary evidence (See, MJ Lilly Assoc., LLC v. Ovis Creative, LLC, 221 A.D.3d 805 [2023]). Since Defendants fail to establish that the contents of the Online Terms and Conditions are undeniable, or that they even govern the relationship between CONA and Plaintiff, the Online Terms and Conditions do not constitute documentary evidence. Lastly, Defendants’ attorney submitted affidavits in the form of a “Memorandum of Law in Support of Defendants’ Motion to Dismiss” and a “Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss.” These memoranda are not documentary evidence upon which the Court may grant relief (CPLR 3211[a][1]; See, Attias v. Costiera, 120 A.D.3d 1281 [2d Dept 2014]). Thus, Defendants’ motion to dismiss pursuant to CPLR 3211(a)(1) is denied. Defendants’ Motion to Dismiss Pursuant to CPLR 3211(a)(7) On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must afford the pleadings a liberal construction, accept the facts alleged in the complaint as true, provide the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (See, Leon v. Martinez, 84 N.Y.2d 83 [1994]). Plaintiff’s complaint alleges negligence, which is a “recognizable…cause of action known to our law” (See, Shaya B. Pac, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2d Dept 2006]). Plaintiff alleges the requisite elements of the cause of action as well (See, Leon v. Martinez, 84 N.Y.2d 83 [1994]). Further. Plaintiff has provided sufficient notice of the transactions and occurrences that Plaintiff intends to prove. At this time, the Court does not need to determine whether Plaintiff ultimately will be able to prove Plaintiff’s claims or whether the complaint later will survive a summary judgment motion (See, Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587 [2d Dept 2014]). Plaintiff’s complaint, though inartfully drafted, is sufficient to survive Defendants’ motion to dismiss. For the foregoing reasons, Defendants motion pursuant to CPLR 3211 (a)(7) is denied. Plaintiff’s Request for Leave to Amend the Complaint Pursuant to CPLR 3025(b) CPLR 3025(b) states as follows: “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” Emphasis added. “Provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit,” then leave to amend shall be freely given upon such terms as may be just (Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 609 [2d Dept. 2003]). Here, Plaintiff has not provided any proposed amended or supplemental pleading. Therefore, the Court cannot evaluate if the changes Plaintiff seeks to make will be palpably insufficient, prejudicial or surprising to the opposing party, or patently devoid of merit. CPLR 3025(b) explicitly requires the movant to annex a proposed amended or supplemental pleading to any motion to amend or supplement a pleading. Despite the liberal analysis afforded under this statute. Plaintiff’s failure to satisfy this explicit requirement denies Plaintiff of relief (CPLR 3025[b]; See, Scialdone v. Stepping Stones Assoc., L.P., 148 A.D.3d 950 [2d Dept 2017]). As such, Plaintiff’s request for leave to amend the complaint pursuant to CPLR 3025(b) is denied. CONCLUSION Upon the forgoing cited papers, it is hereby: ORDERED, that Defendants’ motion to dismiss pursuant to CPLR 3211(a)(1) and (a)(7) are denied; and it is further ORDERED, that Plaintiff’s motion seeking leave to amend the complaint pursuant to CPLR 3025(b) is denied; and it is further ORDERED, that the parties shall appear for a conference on August 29, 2024 at 9:30am in Room 101. This constitutes the decision and order of the Court. Dated: April 30, 2024
