New York Schools Insurance Reciprocal v. Gugliotti Associates, Inc.

—In a subrogation action to recover benefits paid under a policy of insurance, the defendant MVM *564Contracting Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated March 21, 2001, as denied that branch of its motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1).

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the Supreme Court properly denied that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1). “To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Teitler v Pollack & Sons, 288 AD2d 302 [2001]; see Held v Kaufman, 91 NY2d 425, 430-431 [1998]). The documentary evidence submitted by the appellant failed to establish conclusively its defense that the plaintiff waived its right to assert this subrogation action against the appellant. Florio, J.P., Feuerstein, Friedmann and Crane, JJ., concur.