N.Y. C.P.L.R. § 3211

CPLR 3211(a)(7) governs motions to dismiss for failure to state a cause of action and requires pleaded facts to be treated as true with every favorable inference, subject to exceptions for bare conclusions and documentary contradictions.

Leder v. Spiegel · filed 2006-07-06(a)(7)

With regard to that branch of petitioner’s motion which sought dismissal of appellant’s legal malpractice counterclaims, it is well settled that in considering a motion to dismiss brought pursuant to CPLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Delran v Prada USA Corp., 23 AD3d 308 [2005]).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action.

Meridian Acupuncture Care v. Geico Insurance · filed 2006-07-11(a)(7)

The Supreme Court properly dismissed the complaint for failure to state a cause of action {see CPLR 3211 [a] [7]).

A complaint may be dismissed for failure to state a cause of action when it does not state the nature of a duty owed by the defendants to the plaintiffs.

Spearhead, Inc. v. Spearhead System Consultants (US), Ltd. · filed 2006-07-11(a)(7)

The complaint was properly dismissed insofar as asserted against the defendants Spearhead System Consultants (US), Ltd., and Elizabeth Vermeulen for failure to state a cause of action on the ground that the plaintiffs failed to state the nature of any duty owed by those defendants to them.

Section 3211 allows a court to dismiss a discovery proceeding when the petition fails to state a cause of action against the movant.

In re the Estate of Noble · filed 2006-07-18(a)(7)

A discovery proceeding pursuant to SCPA 2103 may be dismissed on a motion pursuant to CPLR 3211 where the petition fails to state a cause of action on behalf of the fiduciary against the movant (see Matter of Pascale, 168 Misc 2d 891 [1996]).

CPLR 3211(a)(7) permits dismissal when a complaint does not sufficiently state a cause of action.

Cruciata v. Mainiero · filed 2006-07-20(a)(7)

Given the foregoing, as well as the subsequent reopening of the matrimonial action for a de novo determination of all issues except for the actual divorce, the allegations in the amended verified complaint sufficiently state causes of action for legal malpractice and related relief against plaintiffs attorney in the matrimonial action.

CPLR 3211(a)(7) permits dismissal of a cause of action that fails to state a claim.

Darbonne v. Goldberger · filed 2006-07-25(a)(7)

The Supreme Court correctly granted those branches of the motion of the defendants Town of Orangetown and Planning Board of Orangetown (hereinafter collectively the Town) which were pursuant to CPLR 3211 (a) (7) to dismiss the 20th and 21st causes of action in the third amended complaint insofar as asserted against them.

Section 3211(a)(7) allows dismissal of a complaint that fails to state a cause of action, with the allegations assumed true and given every favorable inference.

Doyle v. Siddo · filed 2006-07-25(a)(7)

The Supreme Court properly determined that the complaint, which is assumed to be true and accorded every favorable inference on the cross motion of the defendant Roland Tibert pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Schneider v Hand, 296 AD2d 454 [2002]), alleged that the plaintiff openly possessed and occupied the subject premises pursuant to a claim of equitable ownership prior to Tibert’s purchase.

CPLR 3211(a)(7) permits dismissal when the complaint fails to allege sufficient facts to state a cause of action.

Portlette v. Toussaint · filed 2006-07-25(a)(7)

The complaint fails to allege sufficient facts to state a cause of action to recover damages for breach of a duty of fair representation (see Smith v Sipe, 67 NY2d 928 [1986]; Matter of Grassel v Public Empl. Relations Board, State of N.Y., 301 AD2d 522 [2003]; Ponticello v County of Suffolk, 225 AD2d 751 [1996]; Ahrens v New York State Pub. Empls. Fedn., AFL-CIO, 203 AD2d 796 [1994]; Schmitt v Hicksville UFSD No. 17, 200 AD2d 661 [1994]).

Section 3211(a)(7) requires the court to accept the complaint's allegations as true, give the plaintiff every favorable inference, and decide only whether the alleged facts fit a cognizable legal theory.

Chestnut Ridge Air, Ltd. v. 1260269 Ontario Inc. · filed 2006-07-31(a)(7)

In evaluating a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), the court must accept the allegations of the complaint as true, and accord plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within a cognizable legal theory.

CPLR 3211(a)(7) requires the court to accept pleaded facts and opposition submissions as true, give the plaintiff every favorable inference, and decide only whether the facts fit a cognizable legal theory.

Richmond Shop Smart, Inc. v. Kenbar Development Center, LLC · filed 2006-08-08(a)(7)

In deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), the court “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord [the plaintiff] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Operative Cake Corp. v Nassour, 21 AD3d 1020 [2005]).

CPLR 3211(a)(7) requires the court to accept the complaint’s factual allegations as true and give the plaintiff the benefit of favorable inferences when deciding whether the plaintiff can succeed on any reasonable view of the facts.

Simmons v. Edelstein · filed 2006-08-15(a)(7)

“On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine, accepting as true the factual averments of the complaint and according the plaintiff the benefit of all favorable inferences, whether the plaintiff can succeed upon any reasonable view of the facts as stated”

CPLR 3211(a)(7) requires the court to accept the complaint's factual allegations as true and give the plaintiff every favorable inference when deciding whether it states a cause of action.

Blume v. A & R Fuels, Inc. · filed 2006-09-12(a)(7)

Accepting the factual allegations in the amended complaint as true and according the plaintiff the benefit of every favorable inference, as we must on a motion pursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Gem Servs. of N.Y., Inc. v United Gen. Tit. Ins. Co., 28 AD3d 516 [2006]; Morales v Copy Right, Inc., 28 AD3d 440 [2006], lv denied 7 NY3d 705 [2006]; Hartman v Morganstern, 28 AD3d 423 [2006]), we agree with the Supreme Court that the amended complaint failed to state a cause of action to recover damages for tortious interference with contractual relations.

Section 3211(a)(7) permits dismissal when a complaint's allegations are vague, conclusory, and indefinite.

Island Surgical Supply Co. v. Allstate Insurance · filed 2006-09-12(a)(7)

The complaint was properly dismissed pursuant to CPLR 3211 (a) (7) and 3013 because the allegations were vague, conclusory, and indefinite as to the alleged breach of numerous contracts by the defendant insurance carriers.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Dowd v. Alliance Mortgage Co. · filed 2006-09-19(a)(7)

The defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint. ... The complaint also sufficiently alleged causes of action to recover damages for violations of General Business Law § 349 (a), and for money had and received (see Dougherty v North Fork Bank, supra).

CPLR 3211(a)(7) requires the court to accept pleaded facts as true and give the plaintiff every favorable inference when deciding whether the complaint states a cause of action.

Morgan v. City of New York · filed 2006-09-19(a)(7)

Accepting as true the facts alleged in the complaint, as well as those asserted in the plaintiffs submissions in opposition to NYCHHC’s motion to dismiss pursuant to CPLR 3211 (a) (7), and according the plaintiff the benefit of every possible favorable inference, as we must on such a motion (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Wieder v Skala, 80 NY2d 628, 631 [1992]; Jackal Holdings, LLC v JSS Holding Corp., 23 AD3d 435 [2005]), we conclude that the plaintiff is correct.

On a motion under CPLR § 3211(a)(7), the complaint must be construed in the light most favorable to the plaintiff, with factual allegations accepted as true, and dismissal is warranted only when no cause of action is conclusively established.

Singleton v. City of New York · filed 2006-09-19(a)(7)

“It is well settled that, as a general rule, on a motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7), the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true”

Section 3211(a)(7) requires dismissal when a pleading fails to state a cause of action and directs the court to construe pleadings liberally, presume alleged facts true, and give the plaintiff every favorable inference.

Murphy v. Pontillo · filed 2006-07-18(a)(7)

In reviewing the sufficiency of a pleading, the court must construe the pleadings liberally, and the facts alleged are to be presumed true and accorded every favorable inference. (Fleming v Allstate Ins. Co., 106 AD2d 426 [2d Dept 1984]; Foley v DAgostino, 21 AD2d 60 [1st Dept 1964].) The pleadings in this case are not so deficient to warrant dismissal based on the proof and arguments of the defendant.

Section 3211(a)(7) permits dismissal when a complaint does not state a legally sufficient cause of action, while its factual allegations are accepted without contrary factual findings.

Gunthel v. Deutsche Bank AG · filed 2006-08-24(a)(7)

We are not persuaded that the motion court made factual findings contradicting the allegations of the complaint.

CPLR 3211(a)(7) requires the court to determine whether the plaintiff has a cause of action, accepting factual allegations as true and drawing favorable inferences.

Batshever v. Okin · filed 2006-09-20(a)(7)

“[0]n a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated” (see, Thoubboron v Convery, 306 AD2d 521, 522 [2d Dept 2003]). Since section 10 (b) of the BBA Rules was implemented as part of the fee dispute resolution program, as set forth in the Rules of the Chief Administrator with the approval of the Presiding Judge of this judicial district, plaintiffs interpretation of the Rules of the Chief Administrator is meritless, and, therefore, affords him no possibility of success.

On a motion to dismiss for failure to state a cause of action, the alleged facts are accepted as true and the court determines whether they fit within any cognizable legal theory.

Lupski v. County of Nassau · filed 2006-09-26(a)(7)

In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory.

Under CPLR 3211(a)(7), the court gives the complaint's allegations every favorable inference and decides whether they state a cause of action.

Watkins v. Village of Briarcliff Manor · filed 2006-10-17(a)(7)

Giving the allegations of the complaint the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; CPLR 3211 [a] [7]), we conclude that the complaint states a cause of action pursuant to 42 USC § 1983 for violation of the plaintiffs civil rights against the defendants Village of Briarcliff Manor and Briarcliff Manor Police Department, insofar as it alleges that those defendants acted with deliberate indifference to the plaintiffs constitutional rights in failing to adequately train and supervise their police officers in matters concerning the sealing of arrest records and dissemination of information from sealed arrest records to the public (see Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278 [2003]).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but dismissal is improper when the complaint pleads a cognizable cause and the movant's proof does not conclusively establish that no cause exists.

Annunziato v. City of New York · filed 2006-10-31(a)(7)

It is clear, however, that the complaints in the related actions plead cognizable causes of action, including the element of causation. Moreover, the City’s proof submitted on that branch of the motion failed to conclusively establish that no cause of action exists (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]). As such, that branch of the motion which was to dismiss the complaints for failure to state a cause of action was properly denied.

Section 3211(a)(7) permits dismissal of a cause of action for failure to state a valid claim.

Spitz v. Klein · filed 2006-10-31(a)(7)

Moreover, the cause of action alleging fraud, insofar as asserted against the defendants Carl M. Klein, Newport Sales, Inc., AML Realty LLC, and Marilyn Spitz, should have been dismissed for failure to state a cause of action.

Section 3211(a)(7) requires dismissal when, even giving the plaintiff every favorable inference, the complaint fails to demonstrate a viable cause of action.

Independence Community Bank v. East 86th Street, LLC · filed 2006-11-02(a)(7)

According plaintiff every favorable inference, it fails to demonstrate a viable cause of action against defendant for fireproofing work that was done in a portion of the condominium building not owned by defendant landlord.

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action.

Herron v. Essex Insurance · filed 2006-11-02(a)(7)

Instead, the court evidently construed High Peak’s motion as seeking dismissal of the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]; [e]). In our view, because the facts alleged in the complaint fit within a cognizable legal theory—that High Peak breached a continuing duty, arising out of a special relationship with plaintiffs, to advise them to obtain additional coverage (see Murphy v Kuhn, 90 NY2d 266, 272-273 [1997]; Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435, 438 [2003])—High Peak failed to demonstrate prima facie entitlement to dismissal of the complaint and Supreme Court properly denied its motion to the extent that the complaint asserts a cause of action arising out of High Peak’s alleged special relationship with plaintiffs (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(7) permits dismissal for failure to state a cause of action.

Gallagher v. Kucker & Bruh, LLP · filed 2006-11-08(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true, and according the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Gjonlekaj v Sot, 308 AD2d 471, 473 [2003]). Applying these principles to the case at bar, the allegation that the letter written by the defendant Saul D. Bruh contained defamatory statements were sufficient to state a cause of action. Accordingly, the Supreme Court properly denied that branch of the motion pursuant to CPLR 3211 (a) (7) which was to dismiss the first cause of action to recover damages for libel.

Section 3211(a)(7) requires a court to accept the complaint’s facts as true and give the plaintiff every favorable inference when deciding whether it states a legally cognizable cause of action.

International Shoppes, Inc. v. Spencer · filed 2006-11-08(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept as true the facts alleged in the complaint and afford the plaintiffs the benefit of every possible favorable inference in determining whether the complaint states any legally cognizable cause of action (see Schenkman v New York Coll, of Health Professionals, 29 AD3d 671 [2006]).

Section 3211(a)(7) permits dismissal of a cause of action when the allegations are insufficient to state it.

Galland v. Kossoff · filed 2006-11-14(a)(7)

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about June 27, 2005, which, insofar as appealed from, granted defendants-respondents’ motion pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs’ causes of action under Judiciary Law § 487 and for malicious prosecution, unanimously affirmed, without costs. ... The Judiciary Law § 487 claim was properly dismissed for lack of allegations sufficient to show that defendants were guilty of a “delinquency,” let alone one that was part of a “chronic and extreme pattern,” in their representation of plaintiffs’ landlord in summary proceedings against plaintiffs and others (Solow Mgt. Corp. v Seltzer, 18 AD3d 399, 400 [2005], lv denied 5 NY3d 712 [2005]).

Section 3211(a)(7) requires the court to determine whether the complaint's factual allegations, accepted as true with favorable inferences, state any legally cognizable cause of action.

Aranki v. Goldman & Associates, LLP · filed 2006-11-14(a)(7)

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), [t]he sole criterion is whether from [the complaint’s] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law . . . The court must accept the facts alleged in the pleading and the submissions in opposition to the motion as true, and accord the plaintiff the benefit of every possible favorable inference” (Operative Cake Corp. v Nassour, 21 AD3d 1020, 1021 [2005] [citations and internal quotation marks omitted]).

CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action.

RB Hempstead, LLC v. Incorporated Village of Hempstead · filed 2006-11-14(a)(7)

On its motion to dismiss, the defendant Incorporated Village of Hempstead (hereinafter the Village) provided evidence that clearly established that the plaintiff failed to assert causes of action against it for specific performance and a permanent injunction (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; CPLR 3211 [a] [7]).

Section 3211(a)(7) permits dismissal of a deceptive-practices claim when the complaint alleges no facts that, if proven, would show a deceptive act or practice.

Siegel v. Landy · filed 2006-11-14(a)(7)

The court also properly dismissed as against Landy the fourth and fifth causes of action alleging violations of General Business Law § 349, as the complaint failed to allege any facts which, if proven, would show that Landy engaged in any deceptive act or practice declared to be unlawful (see CPLR 3211 [a] [7]; Leon v Martinez, supra; Taylor v BMG Direct Mktg., 299 AD2d 181 [2002]).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Litvinov v. Hodson · filed 2006-11-17(a)(7)

Within that framework, we conclude that defendants have failed to establish that the fifth and sixth causes of action do not state a cause of action against them, and have thus failed to establish that dismissal of those causes of action is warranted under CPLR 3211 (a) (7) (see Watts, 15 AD3d at 851).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action only when, even accepting the allegations as true, the plaintiff cannot establish a cause of action.

Fischer v. Sadov Realty Corp. · filed 2006-11-21(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the allegations in the complaint should be accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

CPLR 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, while the complaint receives the benefit of all favorable inferences at that stage.

Pipia v. Nassau County · filed 2006-11-21(a)(7)

Although the complaint must be given the benefit of all favorable inferences at this stage in the proceedings (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Castaldi v 39 Winfield Assoc., 30 AD3d 458 [2006]; Morales v Copy Right, Inc., 28 AD3d 440 [2006]), it nonetheless fails to state a cause of action under this standard.

Section 3211(a)(7) permits dismissal when a complaint fails to state a legally sufficient cause of action, with the allegations assumed true and favorable inferences given to the plaintiff.

Hlavaty v. San Filippo · filed 2006-11-28(a)(7)

The Supreme Court erred in dismissing the second cause of action, which alleged an intentional tort, pursuant to CPLR 3211 (a) (7). Assuming the truth of the pertinent allegations, and giving the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Zornberg v North Shore Univ. Hosp., 29 AD3d 986 [2006]), the complaint states a cause of action sounding in intentional tort. Accordingly, we deny that branch of the defendant’s motion which was to dismiss the second cause of action pursuant to CPLR 3211 (a) (7).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action and requires the court to accept the complaint's allegations as true while giving the plaintiff every favorable inference.

Link v. City of New York · filed 2006-11-28(a)(7)

Ordered that the order is reversed, on the law, with costs, that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action is granted, and that branch of the motion which was for summary judgment dismissing the complaint is denied as academic. ... Liberally construing the allegations of the complaint, as amplified by the bill of particulars, accepting the allegations of the complaint as true, and providing the plaintiff with the benefit of every possible favorable inference (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87 [1994]), the complaint fails to allege a specific statute, ordinance, or regulatory predicate for relief pursuant to General Municipal Law § 205-e.

Section 3211(a)(7) permits dismissal of a complaint that fails to state a cause of action.

Mason v. Ben Roy Das, Inc. · filed 2006-11-28(a)(7)

Thus, the Supreme Court properly granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Section 3211(a)(7) requires courts reviewing a motion to dismiss for failure to state a cause of action to accept the complaint's factual allegations as true and permits consideration of plaintiff affidavits to remedy defects.

International Oil Field Supply Services Corp. v. Fadeyi · filed 2006-12-05(a)(7), (e)

On a CPLR 3211 (a) (7) motion to dismiss, the facts alleged in the complaint must be accepted as true, and the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action, including when a claim is duplicative.

Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C. · filed 2006-12-05(a)(7)

The Lender and Hewitt are correct, however, that the seventh cause of action alleging conspiracy to breach a fiduciary duty should have been dismissed pursuant to CPLR 3211 (a) (7) because it is duplicative of the aiding and abetting cause of action (see American Baptist Churches of Metro. N.Y. v Galloway, 271 AD2d 92 [2000]).

Section 3211(a)(7) tests whether a complaint states a cause of action by accepting its allegations as true and giving them every favorable inference; affidavits may be considered only to remedy defects in the complaint.

Kurt Wayne, Inc. v. Lead Underwriters at Lloyds London · filed 2006-12-06(a)(7)

Nevertheless, the allegations in the complaint against defendants AIB and Manham, which are accepted as true and are accorded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), state a cause of action. Further, although a court may consider affidavits submitted by the plaintiff on a motion to dismiss pursuant to CPLR 3211 (a) (7), it may do so only to remedy defects in the complaint (Leon at 88).

Section 3211(a)(7) requires the court to accept pleaded facts as true and determine whether they state a cognizable cause of action, subject to exceptions for bare conclusions and claims contradicted by evidence.

Pincus v. Wells · filed 2006-12-12(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept the allegations of the complaint as true and accord the plaintiff the benefit of every possible favorable inference arising therefrom in determining whether the allegations fit within any cognizable legal theory (see Hartman v Morganstern, 28 AD3d 423 [2006]). However, bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action (id.). Further, when the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not just whether he or she has stated one (id.). Here, applying this standard, the amended complaint was properly dismissed.

Section 3211(a)(7) permits dismissal for failure to state a cause of action and requires pleaded facts to be accepted as true with favorable inferences, except for bare legal conclusions and claims flatly contradicted by the record.

Lutz v. Caracappa · filed 2006-12-19(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), although the facts pleaded are to be presumed to be true and are to be accorded every favorable inference, “bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (see Doria v Masucci, 230 AD2d 764, 765 [1996]; also Mayer v Sanders, 264 AD2d 827 [1999]).

CPLR 3211(a)(7) requires courts to construe pleadings liberally, accept alleged facts as true, draw every favorable inference, and decide whether they fit a cognizable legal theory.

McKenzie v. Meridian Capital Group, LLC · filed 2006-12-19(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Goldfarb v Schwartz, 26 AD3d 462, 463 [2006]).

CPLR 3211(a)(7) tests whether the alleged facts fit within a cognizable legal theory, accepting the complaint's allegations as true and giving the plaintiff every favorable inference.

Rodriguez v. City of New York · filed 2006-12-19(a)(7)

Accepting the complaint’s allegations as true, according the plaintiff the benefit of every favorable inference, and determining only whether the facts alleged “fit within any cognizable legal theory” ... the complaint sets forth a cognizable cause of action against Eames Yates, HBO, and Time Warner insofar as it alleges that they acted in concert and encouraged the NYPD to use excessive force, thereby leading to the plaintiffs injuries (see Harris v Stanley, 21 AD3d 612 [2005]; Miele v American Tobacco Co., 2 AD3d 799, 805 [2003]; Weldon v Rivera, 301 AD2d 934 [2003]; Herman v Wesgate, 94 AD2d 938, 939 [1983]; cf. Perry v City of New York, 170 AD2d 350, 351 [1991]; see also Restatement [Second] of Torts § 876).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Ginther v. Jones · filed 2006-12-22(a)(7)

Supreme Court properly granted that part of defendants’ motion seeking to dismiss the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]) and properly denied plaintiffs cross motion.

Section 3211(a)(7) permits dismissal when a cause of action fails to state a claim.

Keskin v. State · filed 2006-11-22(a)(7)

The remaining portion of the defendant’s motion seeks dismissal of the cause of action alleging prima facie tort for the failure to state a cause of action (CPLR 3211 [a] [7]). ... The cause of action sounding in prima facie tort fails to allege two of the essential elements, malice and special damages. ... Regardless, as noted above, the motion is granted to the extent noted, and the claim is dismissed.

Section 3211(a)(7) permits dismissal of a constructive trust complaint that fails to state a cause of action.

Schwartz v. Schwartz · filed 2007-01-09(a)(7)

The Supreme Court erred in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action for a constructive trust.

CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action while accepting the complaint's allegations as true.

Dlugosz v. O'Brien · filed 2007-01-11(a)(7)

Here, accepting all of plaintiff’s allegations in his complaint as true (even as supplemented by his own averments and sworn testimony), there was never a consummated delivery of the lease to defendant under circumstances evincing an intent by both parties that a landlord-tenant relationship be established. Accordingly, the complaint was properly dismissed.

Section 3211(a)(7) permits dismissal when a pleading fails to state a viable cause of action, based on accepting its factual allegations as true and drawing favorable inferences for the nonmoving party.

Abraham v. City of New York · filed 2007-01-23(a)(7)

Accepting as true all of the foregoing factual allegations which are drawn from the amended complaint and additional submissions by the nonmoving parties, and according the nonmoving parties all favorable inferences that may be drawn from those submissions (see Swift v New York Med. Coll., 25 AD3d 686, 687-688 [2006]), the plaintiffs may well be correct in asserting that the City and the Department mishandled the developing situation at the school. ... In sum, we find that the allegations against the City and the Department in the amended complaint and in the cross claims, even when accepted as true, do not establish the existence of a “special relationship” between the City or the Department, on the one hand, and any of the plaintiffs or the school defendants on the other. Thus, the amended complaint and the cross claims fail to state a viable cause of action against the City or the Department and therefore were properly dismissed insofar as asserted against them.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Harris v. Adejumo · filed 2007-01-30(a)(7)

In an action, inter alia, to recover damages for fraud, the defendant American Home Mortgage Acceptance, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated October 7, 2005, as denied its motion pursuant to CFLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the appellant’s motion to dismiss the complaint insofar as asserted against it is granted.

Section 3211(a)(7) permits dismissal of a counterclaim for failure to state a cause of action.

Valentin v. Chong · filed 2007-01-30(a)(7)

The Supreme Court also erred in denying that branch of the plaintiffs motion which was to dismiss the second, third, sixth, seventh, and eighth counterclaims pursuant to CPLR 3211 (a) (7). A “cause of action to recover damages for fraud will not arise when the only fraud alleged relates to a breach of contract” (Rosen v Watermill Dev. Corp., 1 AD3d 424, 426 [2003] [citations omitted]). In this case, the defendant bases his second, third, sixth, seventh, and eighth counterclaims seeking damages for fraud on the same allegations as those in his first counterclaim alleging breach of contract. These allegations were premised mainly on the plaintiff’s submission of false documents to the corporation. Therefore, these counterclaims should have been dismissed for failure to state causes of action.

Section 3211(a)(7) allows a court to dismiss a complaint for failure to state a cause of action.

Putnam County National Bank v. City of New York · filed 2007-02-13(a)(7)

Accepting the Bank’s allegations as true, and according them the benefit of every possible favorable inference, as we must when considering a motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the Bank failed to set forth a cognizable takings cause of action.

CPLR 3211 permits dismissal for failure to state a cause of action, but the complaint survives when the contract does not limit the plaintiffs’ remedy to liquidated damages.

Coizza v. 164-50 Crossbay Realty Corp. · filed 2007-02-20

Accordingly, the complaint should not have been dismissed.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but dismissal must be denied when the allegations state one.

Leighton v. City of New York · filed 2007-02-20(a)(7)

Since the infant plaintiff was born alive and alleges that her injuries resulted from an accident which occurred while she was in útero, she has stated a cause of action. Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the infant plaintiffs cause of action is denied.

Section 3211(a)(7) permits dismissal when the complaint fails to state a cause of action and requires the court to assess whether the alleged facts fit a cognizable legal theory.

Delbene v. Estes · filed 2007-02-21(a)(7)

It is well settled that on a motion to dismiss for failure to state a cause of action, the court initially must accept the facts alleged in the complaint as true and then determine whether those facts fit within any cognizable legal theory, irrespective of whether the plaintiff will likely prevail on the merits. ... Accordingly, the motion to dismiss for failure to state a cause of action is denied.

CPLR 3211(a)(7) requires allegations and reasonable inferences to be accepted as true and the petition to be liberally construed when deciding whether it states a legally cognizable claim.

Violi v. New York State Department of Motor Vehicles · filed 2007-02-16(a)(7)

On a motion to dismiss a petition for failure to state a claim under CPLR 3211 (a) (7) and 7804 (f), the allegations of the petition, and all reasonable inferences that may be drawn from those allegations, must be accepted as true and the petition must be liberally construed in favor of the petitioner (see Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17 AD3d 472 [2005]; Matter of Zaidins v Hashmall, 288 AD2d 316 [2001]; Anguita v Koch, 179 AD2d 454 [1992]).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, and the plaintiff need not show evidentiary facts supporting pleaded allegations on such a motion.

Kotowski v. Hadley · filed 2007-03-06(a)(7)

Moreover, the plaintiff had no obligation to show evidentiary facts to support these allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Scott v Cooper, 215 AD2d 368 [1995]; Arts4All, Ltd. v Hancock, 5 AD3d 106, 109 [2004]; Terry v County of Orleans, 72 AD2d 925, 927 [1979]).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Andrews v. Keltz · filed 2007-03-07(a)(7)

He has demonstrated that the claims against him individually must be dismissed for failure to state a cause of action.

CPLR 3211(a)(7) permits dismissal when the pleading fails to state a cognizable cause of action, with allegations accepted as true when deciding that issue.

Smalley v. Dreyfus Corp. · filed 2007-03-08(a)(7)

Accepting the plaintiffs’ allegations as true for the purpose of determining whether the plaintiffs have a cognizable cause of action (see Skillgames, LLC v Brody, 1 AD3d 247 [2003]), we accept that the defendants did assure the plaintiffs that a merger was not going to happen.

Section 3211(a)(7) requires a court to construe the complaint liberally, accept its allegations as true, and give the plaintiff every possible inference when deciding whether it states a cause of action.

Reyes v. City of New York · filed 2007-03-12(a)(7)

Accordingly, ... plaintiff has sufficiently stated a cause of action by alleging that the City “had actual and constructive knowledge of the inadequate protective fencing” that purportedly resulted in his injuries (cf. EBC I, Inc. v Goldman Sachs & Co., 5 NY3d at 16).

On a motion to dismiss for failure to state a cause of action, the complaint is construed liberally, its alleged facts are accepted as true, and the pleader receives every favorable inference.

Godfrey v. Spano · filed 2007-03-12(a)(7)

On a motion to dismiss the pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the complaint is given a liberal construction, the facts alleged are deemed true, the pleader is given every favorable inference and the only question is whether the plaintiffs in fact have a cause of action under any cognizable legal theory.

Section 3211(a)(7) permits a defendant to seek dismissal of a cause of action for failure to state a cause of action.

Natural Organics, Inc. v. Stafford · filed 2007-03-13(a)(7)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion pursuant to CPLR 3211 (a) (7) which were to dismiss the first and fourth causes of action and so much of the second, third, and fifth causes of action insofar as asserted against the defendant Nature’s Way Products, Inc., are denied.

Section 3211(a)(7) permits dismissal for failure to state a cause of action.

Parlato v. Gburek · filed 2007-03-16(a)(7)

Supreme Court properly granted the motions of the social worker and the psychiatrist seeking dismissal of the “Supplemental/Amended” complaint against them for failure to state a cause of action (see CPLR 3211 [a] [7]).

CPLR 3211(a)(7) permits dismissal when a pleading fails to state a cause of action, with the pleading liberally construed in the claimant’s favor.

Gross v. Gross · filed 2007-03-27(a)(7)

Thus, the petitioner’s amended petition, liberally construed in his favor (see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]), failed to state a cause of action for the one type of accounting to which he would be entitled as a partner in his own right.

Section 3211(a)(7) governs motions to dismiss for failure to state a cause of action.

Jurnove v. Lawrence · filed 2007-03-27(a)(7)

Hence, the petitioners have stated a cause of action sounding in mandamus to compel, and the Supreme Court thus erred in granting the respondents’ motion to dismiss the petition pursuant to CPLR 3211 (a) (7).

Section 3211(a)(7) directs courts to test whether a complaint states a cause of action, accepting the complaint's alleged facts as true for that motion.

Ryan v. Preferred Mutual Insurance · filed 2007-03-29(a)(7)

Applying these principles to the matter before us and accepting, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts alleged in plaintiffs’ complaint as true (see Griffin v Anslow, 17 AD3d 889, 891 [2005]), it is readily apparent that plaintiffs have established the existence of a relationship with Talmon approaching that of privity.

Section 3211(a)(7) allows dismissal when a complaint fails to state a cause of action.

East Coast Athletic Club, Inc. v. Chicago Title Insurance · filed 2007-04-03(a)(7)

The Supreme Court properly granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7). ... The plaintiffs were clearly not parties to the contract at issue, i.e., the title insurance policy issued by Chicago Title to Dime, and Chicago Title owed the plaintiffs no duty.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, with the complaint's allegations given every favorable inference.

Gallina v. Fedrizzi · filed 2007-04-03(a)(7)

The Supreme Court properly denied those branches of the respective motions of the defendants Kerry John Katsorhis and Linda F. Fedrizzi which were pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them in their individual capacities.

Section 3211(a)(7) requires courts to accept the complaint's alleged facts as true and give the plaintiff every favorable inference when deciding whether it states a legally cognizable cause of action.

Town of Riverhead v. County of Suffolk · filed 2007-04-03(a)(7)

As to the sufficiency of the complaint, in considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the Supreme Court must accept as true the facts alleged in the complaint and afford the plaintiff the benefit of every possible favorable inference in determining whether the complaint states any legally cognizable cause of action (see International Shoppes, Inc. v Spencer, 34 AD3d 429 [2006]; Schenkman v New York Coll, of Health Professionals, 29 AD3d 671, 672 [2006]).

Section 3211(a)(7) requires courts to construe the pleading liberally when deciding whether to dismiss for failure to state a cause of action.

Kempf v. Magida · filed 2007-02-27(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction.

Section 3211(a)(7) requires pleadings to be liberally construed when deciding whether a complaint states a cause of action.

Natural Organics, Inc. v. Smith · filed 2007-03-13(a)(7)

Upon a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the pleadings must be liberally construed (see CPLR 3026).

Section 3211(a)(5) permits dismissal when a claim is barred by a prior final judgment, and section 3211(a)(7) permits dismissal when the pleaded facts do not fit any cognizable legal theory.

83-17 Broadway Corp. v. Debcon Financial Services, Inc. · filed 2007-04-10(a)(5), (a)(7)

That branch of the appellant’s cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the first, second, and third causes of action insofar as asserted against it should have been granted. Under New York’s transactional analysis approach to res judicata, “once a claim is brought to a final conclusion, all other claims . . . are barred, even if based upon different theories or if seeking a different remedy” (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see New Horizons Invs. v Marine Midland Bank, 248 AD2d 449 [1998]). ... On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Williams v Williams, 36 AD3d 693 [2007]; McKenzie v Meridian Capital Group, LLC, 35 AD3d 676 [2006]).

Section 3211(a)(7) permits dismissal when the complaint fails to allege sufficient facts to state a cause of action.

Donaldson v. Spencer · filed 2007-04-17(a)(7)

The Supreme Court properly dismissed the remainder of the complaint (see CPLR 3211 [a] [7]), since the plaintiff failed to allege sufficient facts to state a cause of action for fraudulent inducement or conspiracy to defraud (see CPLR 3016 [b]; Greschler v Greschler, 51 NY2d 368, 375 [1980]; Jae Heung Yoo v Se Kwang Kim, 289 AD2d 451, 452 [2001]).

Section 3211(a)(7) permits dismissal for failure to state a cause of action, while requiring the pleading to be liberally construed and its allegations given every favorable inference.

87-10 51st Avenue Owners Corp. v. Steadfast Insurance · filed 2007-04-17(a)(7)

On a motion to dismiss a pleading for failure to state a cause of action, the “pleading is to be liberally construed, accepting all of the facts alleged therein to be true, and according the allegations the benefit of every possible favorable inference” (Klein v Gutman, 12 AD3d 348, 351 [2004] [internal quotation marks omitted]; see Marie Piping v Maric, 271 AD2d 507 [2000]).

Section 3211(a)(7) allows dismissal when a pleading fails to state a legally cognizable cause of action.

Nigro v. Pickett · filed 2007-04-17(a)(7)

A pleading attacked for insufficiency must be accorded a liberal construction, and “if it states, in some recognizable form, any cause of action known to our law,” it cannot be dismissed (Clevenger v Baker Voorhis & Co., 8 NY2d 187, 188 [1960]). The facts stated in the complaint must be taken as true (see Gingold v Beekman, 183 AD2d 870 [1992]), and the plaintiff must be accorded “the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Section 3211(a)(7) permits dismissal for failure to state a cause of action, but sufficiently pleaded required elements support denying dismissal.

Cator v. Bauman · filed 2007-04-20(a)(7)

Defendants, however, also sought dismissal of the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]), and the court concluded that plaintiff had failed to state a cause of action for breach of contract. That was error. Considering both the complaint and plaintiffs affidavit in opposition to the motions to dismiss the complaint (see Leon v Martinez, 84 NY2d 83, 88 [1994]), we conclude that plaintiff sufficiently pleaded the requisite elements of a cause of action for breach of contract (see Furia v Fuña, 116 AD2d 694, 695 [1986]).

CPLR 3211(a)(7) permits dismissal when the pleading fails to state a cause of action, while requiring the court to accept alleged facts as true and give the complaint every favorable inference.

Polidori v. Groupe · filed 2007-04-24(a)(7)

Accepting the truth of such belief, and otherwise giving the complaint the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the facts alleged do not permit an inference that the alleged hostile environment created or left in place by defendant after plaintiff complained was deliberate (cf. Ellis v Child Dev. Support Corp., 5 AD3d 430 [2004]).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action.

Banks v. New York City Department of Education · filed 2007-04-24(a)(7)

Furthermore, there is no merit to the branch of the DOE’s motion which was to dismiss the complaint for failure to state a cause of action (see generally Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]; Mirand v City of New York, 84 NY2d 44 [1994]).

Section 3211(a)(7) permits a motion to dismiss a complaint for failure to state a cause of action based on the sufficiency of the pleadings.

Thompson v. Lamprecht Transport · filed 2007-04-24(a)(7)

Contrary to the plaintiffs’ contention, the court’s denial of that branch of the defendants’ initial motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, which was addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion pursuant to CPLR 3212 for summary judgment, which was addressed to the sufficiency of the evidence (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469 [1987]; M. Dietrich, Inc. v Bentwood Tel. Corp., 56 AD2d 753, 754 [1977]).

CPLR 3211(a)(7) requires a court to accept the complaint's alleged facts as true, give the opposing submissions the benefit of every favorable inference, and decide only whether those facts fit a cognizable legal theory.

Berry v. Ambulance Service of Fulton County, Inc. · filed 2007-04-26(a)(7)

When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), a court “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffl ] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

Section 3211(a)(7) permits dismissal of a pleading that fails to state a cause of action.

Structure-Tone, Inc. v. Ignelzi Interiors, Inc. · filed 2007-05-01(a)(7)

Liberally construing the third-party complaint and accepting the allegations as true, the court properly found that Ignelzi’s contribution claims were sufficiently stated given the allegations that third-party defendants owed duties to both Ignelzi and plaintiff, the breach of which augmented plaintiffs damages (see Schauer v Joyce, 54 NY2d 1, 5 [1981]).

Section 3211(a)(7) permits dismissal when a pleading fails to state a legally cognizable cause of action.

Rocchio v. Biondi · filed 2007-05-01(a)(7)

The Supreme Court also should have granted that branch of the motion which was to dismiss the third cause of action sounding in fraud. A cause of action to recover damages for fraud does not lie where, as here, the only fraud claimed relates to an alleged breach of contract (see Sokol v Addison, 293 AD2d 600, 601 [2002]).

A CPLR 3211(a)(7) motion requires the court to construe pleadings liberally, accept allegations as true, and give the plaintiff every favorable inference.

Grazioli v. Encompass Insurance · filed 2007-05-08(a)(7)

“When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide [the] plaintiff. . . ‘the benefit of every possible favorable inference’ ” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005], quoting Leon v Martinez, 84 NY2d 83, 87 [1994]; see McKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 676 [2006]).

Section 3211(a)(7) requires the court to accept the complaint's alleged facts as true, afford favorable inferences, and decide whether they fit a cognizable legal theory.

Widman v. Rosenthal · filed 2007-05-08(a)(7)

In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, the court “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Lupski v County of Nassau, 32 AD3d 997 [2006]; Richmond Shop Smart, Inc. v Kenbar Dev. Ctr., LLC, 32 AD3d 423 [2006]; Simmons v Edelstein, 32 AD3d 464 [2006]).

CPLR 3211(a)(7) permits dismissal of a counterclaim when licensing requirements make the alleged contract unenforceable and the claimant unable to obtain relief.

Flax v. Hommel · filed 2007-05-15(a)(7)

The Supreme Court erred in denying that branch of the plaintiffs cross motion which was to dismiss the first counterclaim pursuant to CPLR 3211 (a) (7) and 3015 (e). Since Hommel did not satisfy the licensing requirements, he is not entitled to the relief requested in his counterclaim (see Botsaris v JK Bono Gen. Contrs. Corp., 266 AD2d 329 [1999]).

Section 3211(7) permits dismissal when a pleading fails to state a cause of action.

Matter of J. · filed 2007-05-17(7)

The prior motion to dismiss was denied however because Petitioner's actual petition states a cause of action (CPLR 3211 [7]).

Section 3211(a)(7) requires a defense that a pleading fails to state a claim to be raised by an appropriate motion to dismiss.

Plemmenou v. Arvanitakis · filed 2007-04-10(a)(7)

The first affirmative defense alleges that the third-party action fails to state a claim upon which relief may be granted. However, such a defense must be raised by appropriate motion pursuant to CPLR 3211 (a) (7) (see Petracca v Petracca, 305 AD2d 566, 567 [2003]; Propoco, Inc. v Birnbaum, 157 AD2d 774, 775 [1990]; Bentivegna v Meenan Oil Co., 126 AD2d 506, 507-508 [1987]; Glenesk v Guidance Realty Corp., 36 AD2d 852, 853 [1971]).

CPLR 3211(a)(7) requires the court on a preanswer motion to accept the complaint's facts as true, give the plaintiff every favorable inference, and decide whether the facts fit a cognizable legal theory.

Mintz v. American Tax Relief, LLC · filed 2007-05-04(a)(7)

In determining a preanswer motion to dismiss, the court must “accept the facts as alleged in the complaint as true, accord plaintiff! ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

Section 3211(a)(7) permits dismissal when the pleadings fail to state a cause of action, with the factual allegations accepted as true.

Tutora v. Siegel · filed 2007-05-01(a)(7)

Accepting the factual allegations raised in the complaint and in plaintiffs affidavit in opposition to the motion as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the court properly determined that no breach of contract claim was stated against Siegel.

Section 3211(a)(7) requires the court to assume the complaint's allegations are true when deciding whether it states a cause of action.

Fils-Aime v. Ryder TRS, Inc. · filed 2007-05-22(a)(7)

Assuming the allegations of the complaint to be true, as we must in addressing this motion to dismiss (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 411 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), VerMilyea thus became Cornell’s agent within the scope of Policy No. 6.5, when he offered to transport the laboratory equipment himself and Dr. Walter Butler, a Cornell professor who was VerMilyea’s academic advisor, accepted that offer.

Section 3211(a)(7) permits dismissal when a complaint fails to state a legally sufficient cause of action.

Superior Ice Rink, Inc. v. Nescon Contracting Corp. · filed 2007-05-22(a)(7)

Accepting the facts alleged in support of the cause of action against the appellant as true, and according the plaintiff the benefit of every favorable inference, we find that cause of action was not sufficiently pleaded (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(7) requires the court to accept pleaded facts as true and determine whether they fit within any cognizable legal theory when deciding a failure to state a cause of action motion.

Holmes v. Gary Goldberg & Co. · filed 2007-05-29(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Morone v Morone, 50 NY2d 481 [1980]).

Section 3211(a)(7) requires courts to construe the complaint liberally, accept alleged facts as true, and give the plaintiff every favorable inference when deciding whether it states a cause of action.

Lawlor Consultants, Ltd. v. ShorehamWading River Central School District · filed 2007-05-29(a)(7)

“On the question of whether the complaint states a cause of action sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be liberally construed, the facts alleged in the complaint accepted as true, and the plaintiff accorded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994])” (Fay Estates v Toys “R” Us, Inc., 22 AD3d 712, 714 [2005]). Under the circumstances of this case, the Supreme Court properly declined to dismiss the complaint (see Fay Estates v Toys "R" Us, Inc., supra; CPLR 3211 [a] [7]; Incorporated Vil. of Rockville Ctr. v Spiegel, Peter & Liu, Architects, 295 AD2d 479 [2002]; Vrooman v Village of Middleville, 91 AD2d 833 [1982]; see generally Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]; cf. Lawrence L. Smith Assoc. v Board of Educ. of Massapequa Union Free School Dist., 285 AD2d 583 [2001]).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, while allegations that state a cause of action may proceed.

Rimberg & Associates v. Jamaica Chamber of Commerce, Inc. · filed 2007-05-29(a)(7)

Insofar as the complaint, as amplified by evidentiary facts alleged in the plaintiffs affidavit in opposition to the motion to dismiss (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]), may also be read as seeking recovery for outstanding legal fees for services rendered prior to June 30, 1999, those allegations may not be dismissed for failure to state a cause of action.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but factual issues are not properly resolved on such a motion.

Caruso, Caruso & Branda, P.C. v. Hirsch · filed 2007-06-05(a)(7)

The Firm’s contention that it did not depart from the ordinary standard of care applicable to an attorney in a matrimonial action involves factual issues not properly resolved in the context of a motion to dismiss or for leave to amend (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925 [2003]).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Fuchs v. Wachovia Mortgage Corp. · filed 2007-06-05(a)(7)

Giving the allegations of the complaint the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]), we agree with the Supreme Court that the complaint fails to state a cause of action (see CPLR 3211 [a] [7]).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action, with the pleadings construed liberally and allegations accepted as true.

Team Marketing USA Corp. v. Power Pact, LLC · filed 2007-06-07(a)(7)

In resolving a CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).

CPLR 3211(a)(7) permits a motion to dismiss a complaint for failure to state a cause of action.

Town of Macedon v. Hsarman · filed 2007-06-08(a)(7)

CPLR 3211 (a) (7) relates to motions to dismiss a complaint for failure to state a cause of action.

CPLR 3211(a)(7) requires courts to accept pleaded facts as true, give them every favorable inference, and determine whether the complaint states a cognizable cause of action.

Klepetko v. Reisman · filed 2007-06-12(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the pleaded facts are accepted as true and given every favorable inference (see Gershon v Goldberg, 30 AD3d 372, 373 [2006]).

Section 3211(a)(7) requires courts to accept alleged facts as true and give the plaintiff every favorable inference, but requires dismissal when the facts do not fit any cognizable legal theory.

Meltzer v. Meltzer · filed 2007-06-12(a)(7)

On a motion pursuant to CPLR 3211 (a) (7) to dismiss a cause of action, a court must accept the facts alleged in support of that cause of action as true, and accord the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). If the facts as alleged do not fit within any cognizable legal theory, the cause of action must be dismissed (id. at 88).

CPLR 3211(a)(7) requires a motion to dismiss to fail when, accepting the alleged facts as true and giving the plaintiff every favorable inference, the complaint states a recognizable cause of action.

New York Merchants Protective Co. v. Rodriguez · filed 2007-06-12(a)(7)

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action.

Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C. · filed 2007-06-12(a)(7)

However, as in the prior action, the instant complaint also failed to state a cause of action (see CPLR 3211 [a] [7]; Rau v Borenkoff, 262 AD2d 388, 389 [1999]). Thus, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) (see Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006]; Simmons v Edelstein, 32 AD3d 464 [2006]).

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action.

Jean v. Joseph · filed 2007-06-19(a)(7)

Similarly, Lucas Joseph failed to plead any evidentiary facts which, if proven, could support the existence of any duty owed to him by GreenPoint (cf. Parrott v Coopers & Lybrand, 95 NY2d 479, 483-484 [2000]). Accordingly, his cross claim, to the extent asserted against GreenPoint, should have been dismissed (see CPLR 3211 [a] [7]).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action.

Shaller v. City of New York · filed 2007-06-19(a)(7)

In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated June 21, 2006, which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action. ... Ordered that the order is reversed, on the law, with costs, and the motion to dismiss the complaint insofar as asserted against the defendant New York City Transit Authority is granted.

CPLR 3211(a)(7) requires the court to accept complaint allegations as true and permits dismissal only when the plaintiff cannot establish a cause of action even under that view.

Parsippany Construction Co. v. Clark Patterson Associates, P.C. · filed 2007-06-26(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the allegations in the complaint should be accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Such a motion should be granted only where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action (see Morales v Copy Right, Inc., 28 AD3d 440, 441 [2006]; Hartman v Morganstern, 28 AD3d 423, 424 [2006]; Asgahar v Tringali Realty, Inc., 18 AD3d 408, 409 [2005]).

Section 3211(a)(7) permits dismissal when the pleaded facts do not state a legally sufficient cause of action.

Soumayah v. Minnelli · filed 2007-06-28(a)(7)

Accepting as true the facts pleaded by plaintiff and according plaintiff the benefit of every favorable inference to be drawn from those facts, plaintiff failed to state a cause of action for quantum meruit. ... Thus, Supreme Court erred by denying that aspect of the motion seeking dismissal of the third cause of action.

Section 3211(a)(7) permits dismissal for failure to state a cause of action, and section 3211(a)(3) permits dismissal when a plaintiff lacks legal capacity to sue.

Iannucci v. Kucker & Bruh, LLP · filed 2007-07-10(a)(7), (a)(3)

The Supreme Court should have granted those branches of the defendants’ motion which were, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the third and fourth causes of action for failure to state a cause of action. ... Contrary to the defendants’ contention, the Supreme Court properly denied, without prejudice to the defendants’ right to seek leave to renew, that branch of their motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiffs Clocktower Properties (hereinafter Clocktower) and Team Obsolete Productions, Inc. (hereinafter Team Obsolete), on the ground that those parties lack legal capacity to sue. Those parties were not shown to lack legal capacity merely because they may have no cause of action against the defendants for damages for legal malpractice (cf. Silver v Pataki, 96 NY2d 532, 536-537 [2001]; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155-156 [1994]).

Section 3211 permits preanswer dismissal for failure to state a cause of action, while dismissal based on documentary evidence requires conclusive documentary evidence.

HSBC Bank USA v. Bond, Schoeneck & King, PLLC · filed 2007-06-04(a)(1), (a)(7)

The inquiry is limited to whether a plaintiff has a cause of action, not whether he has stated one (see Rovello, 40 NY2d at 636). Defendant C&G has also moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) on the basis of documentary evidence. That basis for dismissal is inapplicable here because there is no conclusive documentary evidence (see AG Capital Funding Partners, L.P., 5 NY3d at 590-591).

Section 3211(a)(7) governs motions to dismiss for failure to state a claim and requires liberal construction of pleadings, acceptance of allegations as true, and favorable inferences for the plaintiff.

Baron v. Pfizer, Inc. · filed 2007-07-05(a)(7)

In determining a motion to dismiss for failure to state a claim, a “court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]; 1455 Washington Ave. Assoc, v Rose & Kiernan, 260 AD2d 770, 771 [1999]).

Section 3211(a)(7) permits dismissal for failure to state a cause of action, and section 3211(e) governs leave to replead after dismissal.

Vigiletti v. Sears, Roebuck & Co. · filed 2007-07-17(a)(7), (e)

The plaintiffs failed to state a cause of action to recover damages for violation of General Business Law § 349. ... Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7). ... The Supreme Court also providently exercised its discretion when it, in effect, denied the plaintiffs’ cross application for leave to replead pursuant to CPLR 3211 (e) as they did not set forth “good ground” to support their causes of action (see Nadkarni v North Shore-Long Is. Jewish Health Sys., 21 AD3d 354, 355 [2005]; Lesesne v Lesesne, 292 AD2d 507, 509 [2002]; 527 Smith St. Brooklyn Corp. v Bayside Fuel Oil Depot Corp., 262 AD2d 278, 279 [1999]).

CPLR 3211(a)(7) permits dismissal of a cause of action that cannot be maintained.

Simone v. Homecheck Real Estate Services, Inc. · filed 2007-07-24(a)(7)

Hence, the cause of action to recover for breach of contract cannot be maintained and should have been dismissed pursuant to CPLR 3211 (a) (7).

Section 3211(a)(7) requires factual allegations in a complaint to be accepted as true and the plaintiff to receive every favorable inference when deciding whether the complaint states a cause of action.

NCJ Cleaners, LLC v. ALM Media, Inc. · filed 2007-07-31(a)(7)

In considering a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the factual averments in the complaint must be accepted as true, and the plaintiff accorded the benefit of every favorable inference.

Section 3211(a)(7) permits dismissal of a cause of action that fails to state a viable claim.

Morris v. Queens-Long Island Medical Group, P.C. · filed 2007-08-07(a)(7)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Queens-Long Island Medical Group, P.C., and Neelima Phatak which was to dismiss the fifth cause of action pursuant to CPLR 3211 (a) (7) is granted.

CPLR 3211(a)(7) permits denial of dismissal when the complaint states a cause of action.

Mintz & Gold LLP v. Zimmerman · filed 2007-09-10(a)(7)

Accordingly, because the complaint alleges that, after the Appellate Division orders, the second action was continued vexatiously or maliciously, and without authority from TSC, a cause of action under Civil Rights Law § 70 is stated. Therefore, the motion to dismiss that claim is denied.

Section 3211 permits dismissal for failure to state a cause of action when the alleged facts, accepted as true with favorable inferences, do not fit a cognizable legal theory.

Parola, Gross & Marino, P.C. v. Susskind · filed 2007-09-18

In reviewing a motion to dismiss a complaint for failure to state a cause of action, “the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory” (Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848 [2007], citing Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Hartman v Morganstem, 28 AD3d 423, 424 [2006]).

Under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and decides only whether the alleged facts fit a cognizable legal theory.

Rodriguez v. County of Rockland · filed 2007-09-18(a)(7)

As to the merits, on a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must accept the complaint’s allegations as true, “according the plaintiff the benefit of every favorable inference, and determining only whether the facts alleged ‘fit within any cognizable legal theory’ ” (Rodriguez v City of New York, 35 AD3d 702, 703-704 [2006], quoting Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

Section 3211(a)(7) permits a court to dismiss a petition for failure to state a cause of action.

Chase Partners, LLC v. Incorporated Village of Rockville Centre · filed 2007-09-18(a)(7)

Therefore, the Planning Board’s determination of the site plan application was timely in this regard, and, upon renewal, the Supreme Court properly granted the Planning Board’s motion to dismiss the petition for failure to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the court accepts the alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Goldfine v. Sichenzia · filed 2007-09-25(a)(7)

In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, the court “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord [the] plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Klepetko v Reisman, 41 AD3d 551 [2007]; Lawlor Consultants, Ltd. v Shoreham-Wading Riv. Cent. School Dist., 40 AD3d 1048 [2007]; Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 [2007]; Widman v Rosenthal, 40 AD3d 749 [2007]).

Section 3211(a)(7) requires a court to accept the alleged facts as true, draw every favorable inference for the plaintiff, and deny dismissal if the complaint states a recognizable cause of action.

Palo v. Byczek · filed 2007-09-25(a)(7)

A motion to dismiss pursuant to CPLR 3211 (a) (7) “will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(7) permits a defendant to seek preanswer dismissal when the complaint fails to state a cause of action.

Valeriano v. Rome Sentinel Co. · filed 2007-09-28(a)(7)

Supreme Court properly granted defendant’s preanswer motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]).

CPLR 3211(a)(7) permits dismissal when a pleading fails to state a cause of action, and a summons with notice is not a pleading subject to dismissal under CPLR 3211(a).

NGH Associates, Ltd. v. United Parcel Service, Inc. · filed 2007-10-01(a)(7)

Since a summons with notice is not a pleading, one cannot move pursuant to CPLR 3211 (a) to dismiss an action when it is commenced by service of a summons with notice.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action and requires the court to assess whether the allegations satisfy the applicable pleading requirements.

Schorr v. Guardian Life Insurance of America · filed 2007-10-02(a)(7)

He did, however, properly plead a cause of action for tortious interference with prospective business relations. The complaint alleged that defendant Guardian Life interfered with plaintiffs longstanding relationship with his client by utilizing “wrongful means” to provide a quote for group insurance coverage to another broker while declining to give a quote to plaintiff for the same coverage. The wrongful means alleged are violations of the Penal Law and the Insurance Law. This was sufficient to satisfy the pleading requirements (see Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 194 [1980]; cf. NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 624-625 [1996]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while CPLR 3211(a)(7) requires accepting pleaded facts as true and giving the plaintiff every favorable inference when determining whether a cause of action is stated.

DePasquale v. DePasquale · filed 2007-10-02(a)(1), (a)(7)

The Supreme Court properly dismissed the plaintiffs second cause of action alleging breach of an oral agreement on the ground that the defendants produced documentary evidence conclusively establishing a defense as a matter of law (see CPLR 3211 [a] [1]; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Matter of Casamassima v Casamassima, 30 AD3d 596 [2006]). ... Further, the Supreme Court should not have dismissed the fifth cause of action pursuant to CPLR 3211 (a) (1) and (7). Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the plaintiff alleged all elements of an equitable cause of action for the imposition of a constructive trust upon sums of money loaned to the defendant Debro Manufacturing Corp. (see Gottlieb v Gottlieb, 166 AD2d 413, 414 [1990]).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, accepting the alleged facts as true and giving the plaintiff favorable inferences.

Drezin v. Delisser · filed 2007-10-04(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, “the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated.”

Section 3211(a)(7) requires dismissal of a claim only when the pleadings, accepted as true with favorable inferences, do not adequately state a cause of action.

Snitovsky v. Forest Hills Orthopedic Group, P.C. · filed 2007-10-16(a)(7)

Accepting the allegations of the pleadings as true, and giving the plaintiff the benefit of every possible favorable inference, the plaintiff adequately alleged causes of action to recover damages for breach of the implied covenant of good faith and fair dealing ... in quantum meruit ... and for unjust enrichment (see Cruz v McAneney, 31 AD3d 54 [2006]).

On a motion to dismiss for failure to state a cause of action, the complaint's factual allegations are accepted as true, favorable inferences are given, and dismissal is proper when the alleged facts do not fit a cognizable legal theory.

Baker v. City of New York · filed 2007-10-30(a)(7)

With regard to the motion by the City pursuant to CPLR 3211 (a) (7), “the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory” (Lupski v County of Nassau, 32 AD3d 997 [2006]). ... Accordingly, the City was entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (7), as the complaint fails to allege facts sufficient to rise to the level of actual malice.

Section 3211(a)(7) permits dismissal of a cause of action that is not sufficiently pleaded, while pleaded facts receive every favorable inference.

Griffin v. DaVinci Development, LLC · filed 2007-10-30(a)(7)

Accepting as true the facts alleged in support of the causes of action asserted in the third-party complaint against RMS, and according the third-party plaintiff the benefit of every favorable inference, the causes of action asserted against RMS in the third-party complaint were not sufficiently pleaded (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

CPLR 3211(a)(7) requires courts to accept the complaint's factual allegations as true and draw favorable inferences; dismissal is unavailable if the plaintiff could succeed on any reasonable view of the allegations.

MacDonell v. PHH Mortgage Corp. · filed 2007-11-07(a)(7)

On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), the court must accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Marchionni v Drexler, 22 AD3d 814 [2005]). If the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed (see Marchionni v Drexler, 22 AD3d at 814; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]).

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action.

Noble v. Bronxville Union Free School District · filed 2007-11-07(a)(7)

the third-party complaint states a cognizable cause of action against the appellant for contribution or indemnification (see CPLR 1401; Raquet v Braun, 90 NY2d 177, 183 [1997]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morad v Morad, 27 AD3d 626, 626-627 [2006]). Accordingly, the Supreme Court properly denied the appellant’s motion in its entirety (see CPLR 3211 [a] [7]; Roth v Goldman, 254 AD2d 405, 406 [1998]).

Section 3211(a)(7) requires the court to assess the complaint’s factual allegations from its four corners to determine whether they state a legally cognizable cause of action.

Salvatore v. Kumar · filed 2007-11-07(a)(7)

Upon a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), the court must determine whether from the four corners of the pleading “factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Morad v Morad, 27 AD3d 626, 627 [2006] [internal quotation marks omitted]).

Section 3211(a)(7) permits dismissal when the complaint fails to state a cause of action, while the allegations are accepted as true and given every favorable inference.

Rosenfeld v. Oxford Construction Associates, LLC · filed 2007-11-13(a)(7)

Taking the allegations of the complaint as true, and according the plaintiffs the benefit of every favorable inference, the allegations, even as amplified by the affidavit of the plaintiff Eric Rosenfeld, fail to state a cause of action as against the defendants Eugene Boshes and Alfred Wilhelm to recover damages for fraud in the inducement (see Mendelovitz v Cohen, 37 AD3d 670 [2007]).

Section 3211(a)(7) permits dismissal for failure to state a cause of action, but adequately pleaded claims survive.

Chestnut Hill Partners, LLC v. Van Raalte · filed 2007-11-20(a)(7)

Under the circumstances, the court properly declined to dismiss the complaint as against Corinthian and Sabre since plaintiff adequately pleaded claims for unjust enrichment and in quasi contract.

Section 3211(a)(7) requires a court evaluating a claim for failure to state a cause of action to accept the allegations as true, give the plaintiff every favorable inference, and decide whether the alleged facts fit a cognizable legal theory.

Bailey v. Chernoff · filed 2007-11-21(a)(7)

Notably, when ruling on a motion to dismiss a claim for failure to state a cause of action, the court “must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004] [internal quotation marks and citation omitted]; see Herron v Essex Ins. Co., 34 AD3d 913, 915 [2006], lv dismissed 8 NY3d 856 [2007]).

CPLR 3211 (a)(5) permits dismissal of a time-barred claim, while CPLR 3211 (a)(7) requires accepting the complaint's allegations as true and asks whether they state a cognizable cause of action.

Meyer v. Stout · filed 2007-11-23(a)(5), (a)(7)

With respect to CPLR 3211 (a) (5), we note that defendant, as limited by his brief on appeal, contends only that the fourth cause of action, for a permanent injunction, is time-barred. We reject that contention. Defendant failed to establish that the action was commenced after the applicable six-year statute of limitations had expired (see CPLR 213 [1]; see also Filby v Brooks, 105 AD2d 826, 828 [1984], affd 66 NY2d 640 [1985]; Rahabi v Morrison, 81 AD2d 434, 439 [1981]). ... With respect to CPLR 3211 (a) (7), we note the well-established principle that, in determining whether to dismiss a complaint for failure to state a cause of action, the court must accept all of the allegations in the complaint as true (see Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon, 84 NY2d at 87-88).

Section 3211(a)(7) requires the court to accept complaint allegations as true, give plaintiffs every favorable inference, and determine whether the alleged facts fit a cognizable legal theory.

Amalgamated Transit Union Local 1181 v. City of New York · filed 2007-11-27(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action.

Amalgamated Transit Union Local 1181 v. City of New York · filed 2007-11-27(a)(7)

The plaintiffs have failed to state a cause of action against the defendant Metropolitan Transportation Authority (hereinafter the MTA) for specific performance of a contract dated August 8, 1975. Accordingly, the Supreme Court should have granted that branch of the MTA’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it in action No. 2 (see Amalgamated Transit Union Local 1181, AFL-CIO v City of New York, 45 AD3d 788 [2007] [decided herewith]).

Section 3211(a)(7) permits dismissal when the complaint fails to plead essential allegations establishing a cause of action.

Sullivan v. St. Francis Hospital · filed 2007-11-27(a)(7)

In the instant case, where the only reference to Phani Nimmagadda is in the caption, and there is no showing of a relationship between him and the tortfeasors named in the body of the complaint from which a cause of action against him may be inferred, the complaint was properly dismissed insofar as asserted against him (see Srob v Raymount Realty, 34 AD2d 1002 [1970]).

On a motion to dismiss for failure to state a cause of action, the complaint must be liberally construed.

Bumpus v. New York City Transit Authority · filed 2008-01-15(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint must be liberally construed.

Under CPLR 3211(a)(7), a complaint may be dismissed when it fails to allege facts sufficient to state a cause of action against the moving defendant.

Merritt v. Merritt · filed 2008-01-15(a)(7)

The Supreme Court correctly granted the separate motions of Berkshire Financial Group, Inc. (hereinafter Berkshire), and IndyMac Bank, ES.B. (hereinafter IndyMac), pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against each of them. ... The amended complaint failed to adequately plead a cause of action to recover damages for unjust enrichment insofar as asserted against Berkshire and IndyMac, as it did not allege that either of them was unjustly enriched.

A complaint challenged for pleading insufficiency need not anticipate a defense or allege malice or bad faith in those precise words to avoid a contractual limitation on damages.

Banc of America Securities LLC v. Solow Building Co. II, L.L.C. · filed 2007-12-04(a)(7)

In the context of this dispute, BAS was not required to anticipate that Solow would assert the lease’s limitation on recovery in defense to the fourth cause of action; thus, there was no need for the complaint to allege that Solow acted with malice or in bad faith to avoid the contractual limitation barring monetary damages.

On a motion under CPLR 3211(a)(7), the court accepts the pleaded facts as true, gives the plaintiff every possible inference, and asks whether those facts fit a cognizable legal theory.

Beja v. Ford · filed 2008-02-13(a)(7)

“On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ... Applying this standard, the complaint does not state a cause of action insofar as asserted against Syosset and Weiss.

On a motion to dismiss for failure to state a cause of action, the court accepts the alleged facts as true, gives the plaintiff every favorable reasonable inference, and asks whether the allegations fit a cognizable legal theory.

General Casualty Insurance v. Kerr Heating Products · filed 2008-02-13(a)(7)

Moreover, the court must accord the plaintiff every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s factual allegations as true and asks whether they state any cognizable cause of action.

Mathurin v. Lost & Found Recovery, LLC · filed 2008-02-18(a)(7)

In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a) (7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]). Here, plaintiff has sufficiently pleaded a prima facie cause of action against Greenpoint/MERS sounding in negligence in underwriting the loan.

On a motion to dismiss under subsection (a)(7), the court accepts the complaint’s facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Aberbach v. Biomedical Tissue Services, Ltd. · filed 2008-02-26(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss for failure to state a cause of action, bare legal conclusions are not presumed true or given every favorable inference.

NCJ Cleaners, LLC v. ALM Media, Inc. · filed 2008-02-26(a)(7)

However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference (see Morris v Morris, 306 AD2d 449, 451 [2003]; Doria v Masucci, 230 AD2d 764, 765 [1996]).

On a motion to dismiss for failure to state a cause of action, the court assumes the allegations are true and construes them liberally in the plaintiff’s favor.

Enriquez v. Home Lawn Care & Landscaping, Inc. · filed 2008-03-04(a)(7)

Similarly, the court properly denied that branch of Egloff s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action. Assuming the truth of the allegations and construing them liberally in favor of the plaintiff ... the complaint adequately states a cause of action against Egloff in his individual capacity.

On a motion under CPLR 3211(a)(7), the court accepts the alleged facts as true and gives the plaintiff every favorable inference, but dismisses a cause of action if those facts fit no cognizable legal theory.

Oszustowicz v. Admiral Insurance Brokerage Corp. · filed 2008-03-04(a)(7)

On a motion pursuant to CPLR 3211 (a) (7) to dismiss a cause of action, a court must accept the facts alleged in support of that cause of action as true, and accord the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). If the facts as alleged do not fit within any cognizable legal theory, the cause of action must be dismissed (see Leon v Martinez, 84 NY2d at 88).

On a motion to dismiss for failure to state a claim, the court accepts the complaint’s allegations as true, gives the plaintiff every possible favorable inference, and asks whether the alleged facts fit any cognizable legal theory.

Samiento v. World Yacht Inc. · filed 2008-02-14(a)(7)

It is well settled that a court, when deciding whether to grant a motion to dismiss pursuant to CPLR 3211, must take the allegations asserted within a plaintiffs complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).

On a CPLR 3211(a)(7) motion, the court accepts the alleged facts as true, construes the complaint liberally, and gives the plaintiff every favorable inference.

Edwards v. Jet Blue Airways Corp. · filed 2008-02-15(a)(7)

On a motion to dismiss pursuant to CPLR 3211 the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference.

On a motion to dismiss under CPLR 3211(a)(7), the court gives the pleading every favorable inference and asks whether its alleged facts fit a cognizable legal theory.

Goldman v. Stein · filed 2008-03-06(a)(7)

When deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the subject pleading every favorable inference, and must restrict its review to determining whether or not the facts alleged fit any cognizable legal theory *904(see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300 [2001]; Leon v Martinez, 84 NY2d 83 [1994]).