Wendell Francis, Appellant, v. Vornado Realty Trust/Kings Plaza Mall, Respondent. (And a Third-Party Action.)

Wendell Francis, Appellant, v Vornado Realty Trust/Kings Plaza Mall, Respondent. (And a Third-Party Action.) [931 NYS2d 888] [MAJORITY] A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if “a defense is founded upon documentary evidence” (CPLR 3211 [a] [1]; see Fontanetta v John Doe 1, 73 AD3d 78 [2010]). Here, the Supreme Court correctly determined that the documentary evidence submitted by the defendant Vornado Realty Trust/Kings Plaza Mall utterly refuted the factual allegations of the plaintiffs complaint and conclusively established a defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2010]; Fontanetta v John Doe 1, 73 AD3d at 83). As such, the Supreme Court also properly denied, as academic, the plaintiffs cross motion, inter alia, for discovery. The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic by our determination. Dillon, J.E, Florio, Chambers and Miller, JJ., concur.