Previous Evidence Cases of the Week
First Department Discusses Scope Of Documentary Evidence, Including WhatsApp Messages, In CPLR 3211(a)(1) Motion To Dismiss
What exactly can serve as documentary evidence to support a CPLR 3211(a)(1) motion to dismiss? In an action seeking damages for, inter alia, breach of contract, breach of fiduciary duty, and unjust enrichment, the motion court, in an amended order, granted defendants’ motion to dismiss the amended complaint under CPLR 3211(a)(1). The First Department in JAK Advisors, LLC v. Bauer, 2026 NY Slip Op 00055 (1st Dep’t 2026) affirmed, holding that plaintiff’s claims were “utterly refuted by documentary evidence:[i]
The communications between the parties demonstrate that plaintiff and the individual defendant mutually reached an accord regarding the end of their business relationship, including plaintiff agreeing to a new 63/37 percentage split of the profits, accepting an offer of an additional $826,000 payment, and providing wire transfer instructions (citations omitted). These communications, corroborated by plaintiff’s in-court admission, also demonstrate that defendant executed the agreement by wiring the money satisfaction (citation omitted). They further demonstrate that the agreed-upon amount was less than plaintiff believed he was owed, thus satisfying the requirement that there be a bona fide dispute as to the amount due (citations omitted).
The First Department cited the Court of Appeals decision in Goshen v. Mut. Lif Ins. Co. of Ne York, 98 N.Y.2d 314 (2002) discussing the high hurdle imposed upon a party seeking dismissal based upon documentary evidence:
Turning to defendants’ CPLR 3211 (a) (1) motion to dismiss on the ground that the action is barred by documentary evidence, such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (citation omitted). Defendants produced documentation illustrating the 30-day trial period and the contractual terms and conditions, including the product disclaimer. [The Court went on to hold that certain other claims were not refuted and ordered their reinstatement].
JAK Advisors explained the broad scope of potential documentary evidence available in 2026:
Documentary evidence may include electronic communications such as emails, text messages, and, as here, WhatsApp messages, where they conclusively establish the asserted defense (citation omitted). Plaintiff sent the messages from an account identified as his own, whereby he accepted the offer of settlement (citation omitted).
Numerous of cases have considered emails and texts as evidence, see, e.g., Langer v. Dadabhoy, 44 A.D.3d 425 (1st Dep’t 2007), providing the proper foundation was established, and the JAK Advisors Court cited a 2022 New York County Supreme Court decision dismissing based, in part, on WhatsApp messages, Popescu v. Austin, 2022 NY Slip Op 31275(U) (“Although plaintiff maintains that the WhatsApp messages between plaintiff and the Austin defendants constitute a binding agreement between the parties that give rise to a breach of contract claim, plaintiff does not dispute that C2 was not part of said exchange. Thus, this court finds that C2 has established its entitlement to dismissal of the breach of contract claim as against this defendant.”). WhatsApp messages (and Facebook videos) were central to the defamation claims in the Second Department’s 2025 decision in Doe v. Eliyas, 241 A.D.3d 1271 (2d Dep’t 2025).
As technology evolves, it behooves attorneys to be creative and consider all types of communications and documents which may constitute evidence if the foundation for admissibility is established.
Decision Date: January 8, 2026
Practical Practice Point:
Establishing the proper foundation can pose a significant impediment to admitting evidence in new and different formats. In JAK Advisors it was established that “[p]laintiff sent the messages from an account identified as his own,” thereby establishing, or at least simplifying, the admissibility of those messages.
An important decision from the Court of Appeals addressing some of the available methods for admitting various electronic messages is People v. Rodriguez, 38 N.Y.3d 151 (2022), and is must reading.
And, for a case discussing the application of the spousal privilege to text messages between a husband and wife wherein the husband discussed sexually molesting their nephew, People v. Lucas, 80 Misc.3d 574 (Sup. Ct. Albany Cty. 2023) is worthwhile reading.
[i] In support of the motion to dismiss, defendant produced thirty (30) pages of text messages which were submitted under cover of an affirmation authenticating the messages. A copy of the messages can be found here: https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=AY9nFVGjdO8FNkxBOnOcHg==
A copy of the affirmation can be found here: https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=YSvzoLVtrXRAkdiurIXOHA==