Justice Francois Rivera
Millien sought a preliminary injunction and order annulling a non-judicial sale of the shares of her co-op. Respondents jointly moved for dismissal. The court noted a motion to dismiss based on documentary evidence under CPLR 3211(a)(1) may be granted only where the evidence refutes plaintiff’s factual allegations, conclusively establishing a defense. Here, it found Citi business analyst Ganter’s affidavit did not qualify as documentary evidence within the scope of §3211(a)(1). Also, the exhibits Ganter described as letters allegedly sent by respondents to Millien did not directly prove a defense to the petition. The court also recognized Millien’s first three causes of action as stating a cognizable claim, including that respondents failed to comply with the provisions of UCC 9-611 by failing to serve her with a 10-day notice of sale of the shares of her unit, as well as failing to comply with UCC 9-613(a)(4) by not specifying that Millien was entitled to an accounting of the unpaid indebtedness. Thus, the court stated, regarding the first three causes of action, respondents failed to show that a material fact as claimed by Millien was not a fact at all, and denied dismissal of the petition.
