Is the Defense of “Release” Documentary Evidence Under 3211(a)(1) or an Affirmative Defense Under (a)(5)(or does it matter)?
September 13, 2018
In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the defense of release. In a case arising out of the Commercial Division in Kings County (Hon. Sylvia G. Ash), a question on appeal was whether the defense of release is considered “documentary evidence” under CPLR 3211(a)(1) or instead a motion that should be brought under CPLR 3211(a)(5). The latter, of course, outlines a list of affirmative defenses, including release. So in defending an action you believe is barred the release, under which section of 3211 do you move? Either.
The case arose out of a contractual arrangement between plaintiffs and defendants entered in 2014, which restructured a previous agreement relating to development rights of property located in Greenpoint. Later that year, plaintiffs lent defendants $4.7 million used as collateral for the issuance of three letters of credit by a lender. A dispute arose over the use of the funds for collateral, and the parties agreed to an amount to be repaid by defendants in exchange for a release. Plaintiffs later sued, alleging a variety of breaches and for a declaratory judgment. (As an aside, see last week’s blog discussing pleading both breach of contract and declaratory judgment claims simultaneously.)
Defendants moved to dismiss under “CPLR 3211(a)”, claiming the release barred the claims. In their moving brief, defendants relied specifically on CPLR 3211(a)(1), a defense based upon documentary evidence, and not CPLR 3211(a)(5), “release”. The reply papers similarly relied on that section alone. The motion court ultimately denied the motion to dismiss with leave to renew following discovery. On appeal, plaintiffs argued that defendants’ failure to move under 3211(a)(5) was fatal on the defense of release. The Appellate Division disagreed, modified the order below, and directed the dismissal of the first cause of action based upon the release.
The Appellate panel reasoned that even if the incorrect ground under 3211(a) is advanced, so long as one of the 3211(a) grounds apply, then dismissal is warranted, no matter how the motion is denominated. The court “‘may treat the motion as having specified the right ground and grant relief, absent prejudice’”, citing Dean R. Pelton Co. v. Moundsville Shopping Plaza, Inc. This follows what the Second Department did also in Alvarez v. Amicucci, where the court upheld dismissal based upon a release in a motion filed under CPLR 3211(a)(1), see also Marc v. Middle Country Center School Dist. (release may be raised by 3211(a)(1) or (5)). For a good discussion of the history, development and application of CPLR 3211(a)(1), including the relation to CPLR 3211(a)(5), Fontanetta v. John Doe is a worthy read.
So, which ground under CPLR 3211(a) should one move under when raising the defense of release? It appears either will work, but no harm in moving under both, although the more common seems to be 3211(a)(1).