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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.

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