Fricano v. Fricano

*810In the instant case, plaintiff, the former husband of defendant, in effect seeks to set aside, as fraudulent, a deed allegedly conveying his interest in the former marital premises, which had been jointly owned by the parties, to defendant only.

Prior to serving an answer, defendant moved to dismiss the complaint on the ground that there was a defense founded on documentary evidence which indicated that the action was without merit (see, CPLR 3211 [a] [1]). Specifically, defendant submitted the deed, as well as another document, which allegedly indicated that plaintiff had agreed to and, in fact, had made the transfer in question. In opposition, plaintiff, by affidavit, challenged the genuineness of the deed, and also, the other document, submitted by defendant.

Under these circumstances, we find that the papers before Special Term were insufficient to disprove plaintiff’s claim as a matter of law. Mangano, J. P., Gibbons, Niehoff and Lawrence, JJ., concur.