Appeal from an order of the Justice Court of the Town of Carmel, Putnam County (Joseph J. Spofford, Jr., J.), entered August 22, 2008. The order, insofar as appealed from, granted defendants' motion to dismiss the action.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendants' motion to dismiss the action is denied, the action is reinstated, and the matter is remitted to the Justice Court for all further proceedings.

Plaintiff commenced this small claims action in the Justice Court (index No. 08020092) to recover a brokerage commission allegedly owed her by her former employers. Defendants moved to dismiss the action, pursuant to CPLR 3211 (a) (1) and (7), asserting that the policies and procedures in effect at the time that plaintiff commenced her employment required her to assist, when called upon, in collecting unpaid commissions after she left the employ of Prudential World Homes Realty and that plaintiff had failed to do so with respect to the commission in question. Plaintiff denied that the policies and procedures in effect when she commenced her employment required her to assist in the recovery of brokerage commissions. The Justice Court granted defendants' motion to dismiss.

In our view, it cannot be said that substantial justice has been done between the parties according to the rules and principles of substantive law (UJCA 1804, 1807). A motion to dismiss an action based on documentary evidence (CPLR 3211 [a] [1]) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). Here, defendants failed to conclusively establish their defense because, among other things, no one averred on personal knowledge that the policies and procedures [*2]relied upon by defendants were in effect when plaintiff signed her contract on July 12, 2005, and plaintiff denied that they were. In addition, the complaint does not fail to state a cause of action (see CPLR 3211 [a] [7]) for commissions earned. Accordingly, the order is reversed and defendants' motion to dismiss the action is denied.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: February 01, 2010