Ploski v Langer

[*1] Ploski v Langer 2007 NY Slip Op 50435(U) [14 Misc 3d 146(A)] Decided on March 7, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 7, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, KLEIN HEITLER, JJ
570718/06.

Steven L. Ploski d/b/a Bellwether Company, Plaintiff-Appellant,

against

Harry Langer and H.L. Langer & Co., Inc., Defendants-Respondents,

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), entered March 1, 2006, which granted defendants' motion to dismiss the complaint.

PER CURIAM:

Order (Eileen A. Rakower, J.), entered March 1, 2006, affirmed, with $10 costs.

Dismissal of a complaint pursuant to CPLR 3211(a)(1) is warranted where, as here, "the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v. Martinez, 84 NY2d 83 [1994]). Civil Court properly dismissed plaintiff's complaint since the documentary evidence, including the contract sued upon and plaintiff's own invoices, unequivocally negated the allegations of the complaint, and established that an unnamed corporate entity, rather than the named defendants, contracted for the services in question (see e.g. American Media Concepts, Inc. v Atkins Pictures, Inc., 179 AD2d 446 [1992]). Nor was the action timely commenced under the governing six year Statute of Limitations (see CPLR 213[2]).

This constitutes the decision and order of the court.
Decision Date: March 7, 2007