N.Y. C.P.L.R. § 3211

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations and opposition submissions as true and asks whether the alleged facts fit a cognizable legal theory.

Sawyer v. Prusky · filed 2010-03-18(a)(7)

the complaint and in any submissions in opposition are accepted as true, and the court determines “whether the facts as alleged fit within any cognizable theory,” i.e., whether the plaintiffs “ha[ve] a cause of action, not whether [they have] stated one”

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

DeSandolo v. United Airlines Inc. · filed 2010-03-30(a)(7)

Accepting the allegations in the complaint as true, according the plaintiff the benefit of every favorable inference, and determining only whether the allegations fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint fails to state a cause of action against the defendant United Airlines Incorporated to recover damages for intentional infliction of emotional distress and gross negligence (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824 [1993]; Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]).

Under CPLR 3211(a)(7), a complaint alleging facts sufficient to state a negligent misrepresentation claim survives a motion to dismiss.

RBS Citizens, N.A. v. Thorsen · filed 2010-03-30(a)(7)

Applying this standard here, we find that the complaint is sufficient to state a cause of action against the defendant to recover damages for negligent misrepresentation. ... Accordingly, the Supreme Court properly denied the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Section 3211(a)(7) permits dismissal only when it is conclusively established that the plaintiff has no cause of action.

Idlewild 94-100 Clark, LLC v. City of New York · filed 2010-04-01(a)(7)

The dismissal of a complaint pursuant to CPLR 3211 (a) (7), therefore, “will be warranted only in those situations in which it is conclusively established that there is no cause of action” (Town of N. Hempstead v Sea Crest Constr. Corp., 119 AD2d 744, 746 [1986]).

A complaint that states a cause of action against a defendant withstands that defendant’s CPLR 3211(a)(7) motion to dismiss.

City of Newburgh v. 96 Broadway LLC · filed 2010-04-06(a)(7)

The defendant Douglas Dollinger’s contention that the complaint fails to state a cause of action as against him is without merit (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]; John John, LLC v Exit 63 Dev., LLC, 35 AD3d 540, 541 [2006]).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action when the allegations, even if true, would not entitle the claimant to the requested relief.

Henderson v. Zoning Board of Appeals · filed 2010-04-06(a)(7)

The Supreme Court should have dismissed those causes of action insofar as asserted against those respondents for failure to state a cause of action, since even if the allegations set forth therein were true, the petitioners would not thereby be entitled to the relief they seek here, specifically, the annulment of the ZBA’s determination (see CPLR 3211 [a] [7]; Matter of Wilson v Board of Educ. Harborfields Cent. School Dist., 65 AD3d 1158 [2009]).

On a CPLR 3211(a)(7) motion that has not been converted to summary judgment, a plaintiff need not provide evidentiary support for viable claims stated in the complaint.

Russo v. Macchia-Schiavo · filed 2010-04-13(a)(7)

The complaint stated viable causes of action, and since the motion was not converted into one for summary judgment, the plaintiff was not put on notice of any obligation to come forward with evidentiary support for his claims (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

On a motion to dismiss for failure to state a cause of action, the court construes the pleading liberally, presumes its allegations true, and gives them every favorable inference.

Scoyni v. Chabowski · filed 2010-04-13(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (see CPLR 3026; Natural Organics, Inc. v Smith, 38 AD3d 628 [2007]). The facts pleaded are presumed to be true and are to be accorded every favorable inference (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]).

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint and gives the plaintiff every favorable inference in deciding whether it states a cause of action.

Tom Winter Associates, Inc. v. Sawyer · filed 2010-04-13(a)(7)

The Supreme Court properly denied the motion of the defendants David N. Sawyer and Amanda Hilton Sawyer (hereinafter together the appellants) pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them and to vacate a mechanic’s lien. Affording the complaint a liberal construction and according the plaintiff every favorable inference, the complaint states causes of action to recover damages for breach of contract and unjust enrichment, and to foreclose a mechanic’s lien.

A claim may be dismissed for failure to state a cause of action when its allegations, even if true, do not establish a claim.

Aliano v. Oliva · filed 2010-04-20(a)(7)

... since the allegations contained in those branches of the amended petition, even if true, do not state a cause of action (see generally Bower Assoc. v Town of Pleasant Val., 2 NY3d 617 [2004]; cf. Town of Orangetown v Magee, 88 NY2d 41 [1996]).

On a motion to dismiss for failure to state a cause of action, the pleading receives every favorable inference and its alleged facts are assumed true.

Pike v. New York Life Insurance · filed 2010-04-27(a)(7)

With respect to the remaining three policy numbers, the Supreme Court should have dismissed the plaintiffs’ first cause of action to recover damages for breach of contract insofar as asserted against the defendant companies pursuant to CPLR 3211 (a) (7). Upon a motion to dismiss for failure to state a cause of action, a pleading must be given the benefit of every possible favorable inference to be drawn, and every fact alleged must be assumed to be true (see Maurillo v Park Slope U-Haul, 194 AD2d 142, 145 [1993]).

Section 3211(a)(7) requires denial of a motion to dismiss when the complaint adequately alleges a viable cause of action.

Harris v. IG Greenpoint Corp. · filed 2010-04-29(a)(7)

The motion must be denied where the complaint adequately alleges, for pleading survival purposes, viable causes of action.

Section 3211(a)(7) permits a complaint to proceed when its allegations, read liberally, state a cause of action.

Beesmer v. Besicorp Development, Inc. · filed 2010-04-29(a)(7)

Contrary to Supreme Court’s determination, our reading of the complaint reveals that, for the purposes of defendants’ motions, it sufficiently alleges that all of defendant business entities were successors in interest to Besicorp, Ltd. and, thus, states a cause of action as against them.

CPLR 3211(a)(7) permits dismissal of causes of action that fail to state a cause of action.

Cooper v. New York Central Mutual Fire Insurance · filed 2010-04-30(a)(7)

We agree with defendant, however, that the court erred in denying its motion insofar as it sought dismissal of the second through sixth causes of action for failure to state a cause of action (see CPLR 3211 [a] [7]), as well as the claim for punitive damages, and we therefore modify the order accordingly.

On a motion to dismiss under CPLR 3211(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.

Farneti v. AT&T · filed 2010-04-30(a)(7)

Supreme Court properly denied, without prejudice to renew, that part of defendant’s motion pursuant to CPLR 3211 (a) (7) seeking to dismiss the first cause of action insofar as it alleges breach of an employment contract. In determining that part of the motion, the court was required to “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” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

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

Datena v. JP Morgan Chase Bank · filed 2010-05-04(a)(7)

On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint, the allegations in the complaint are accepted as true and accorded the benefit of every possible favorable inference to determine if the facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss for failure to state a cause of action, the complaint must be liberally construed in the plaintiff's favor, with its alleged facts accepted as true.

Kats v. East 13th Street Tifereth Place, LLC · filed 2010-05-04(a)(7)

Upon a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the complaint must be liberally construed in the light most favorable to the plaintiff, accepting the facts as alleged to be true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Wilner v Allstate Ins. Co., 71 AD3d 155, 159 [2010]).

On a motion to dismiss for failure to state a cause of action, the court considers only the petition, accepts its allegations as true, and gives the petitioner every possible inference.

Brown v. Foster · filed 2010-05-11(a)(7)

On a motion pursuant to CPLR 3211 (a) (7) and 7804 (f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference (see Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17 AD3d 472, 473 [2005]; Matter of Hutt v Retirement Bd. of N.Y. State Teachers’ Retirement Sys., 299 AD2d 679, 680 [2002]).

On a motion under subsection (a)(7), the court construes the complaint liberally, accepts its allegations as true, and gives the plaintiff every favorable inference.

F.W.J. Realty Corp. v. County of Suffolk · filed 2010-05-18(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 afford the complaint a liberal construction, accept the allegations of the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint and asks whether the alleged facts fit a cognizable legal theory.

Reiver v. Hirschberg Wexler & Hirschberg, LLP · filed 2010-05-25(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211, the court must afford the complaint a liberal construction 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 permits dismissal when a complaint fails to state a viable cause of action.

Florentino v. Nokit Realty Corp. · filed 2010-05-27

On a motion to dismiss under CPLR 3211, the court’s task is to determine whether the pleadings state a cause of action. ... In any event, the court need not decide whether section 157 (1) applies in this case because even had defendants complied with the statute, dismissal is nonetheless warranted as the third-party complaint fails to state a viable cause of action (see Gorelik, 19 AD3d at 319-320 [dismissal is warranted absent any viable claims]).

Documents submitted on a CPLR 3211(a)(7) motion do not warrant dismissal when they fail to establish as a matter of law that the alleged breach did not occur.

Caravousanos v. Kings County Hospital · filed 2010-06-01(a)(7)

Thus, as the documents submitted do not demonstrate, as a matter of law, that NOVA did not breach the terms of the performance bond, the Supreme Court properly denied that branch of Nova’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint insofar as asserted against it (see Lucia v Goldman, 68 AD3d 1064 [2009]; International Shoppes, Inc. v Spencer, 34 AD3d 429 [2006]; Klein v Gutman, 12 AD3d 417 [2004]).

CPLR 3211 permits dismissal for failure to state a cause of action when the complaint’s allegations, accepted as true, do not establish the claim.

Rut v. Young Adult Institute, Inc. · filed 2010-06-01

Accepting the allegations of the complaint as true, the allegations do not indicate any meeting of the minds with respect to the material terms of the alleged promise to pay the plaintiff a lump sum or to purchase a commercial annuity. Therefore, the plaintiff failed to state a cause of action sounding in breach of contract.

On a motion to dismiss under CPLR 3211(a)(7), courts construe the pleadings liberally, accept alleged facts as true, give the plaintiff every possible inference, and ask whether the allegations fit a cognizable legal theory.

Upstate Land v. Town of Bethel · filed 2010-06-03(a)(7)

When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), we afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Lazic v Currier, 69 AD3d 1213, 1213-1214 [2010]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true and grants dismissal only if those facts fit no cognizable legal theory.

Kuzmin v. Nevsky · filed 2010-06-08(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 facts do not fit within any cognizable legal theory (id. at 87-88; see Morales v Copy Right, Inc., 28 AD3d 440, 441 [2006]; Hartman v Morganstern, 28 AD3d 423, 424 [2006]).

A fraud claim survives a motion to dismiss for failure to state a cause of action when the complaint adequately alleges intentional misrepresentations.

Lytell v. Lorusso · filed 2010-06-08(a)(7)

The Supreme Court properly denied that branch of Levinson’s motion which was to dismiss the cause of action alleging fraud insofar as asserted against them, for failure to state a cause of action (see CPLR 3211 [a] [7]).

On a CPLR 3211(a)(7) motion to dismiss, the court must accept the facts alleged in the complaint as true.

Pramer S.C.A. v. Abaplus International Corp. · filed 2010-06-10(a)(7)

In accepting the facts alleged by plaintiff as true, as we must in the context of a CPLR 3211 (a) (7) motion to dismiss, plaintiff’s amended complaint has alleged with specificity the elements of fraud, namely, “material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages” (Art Capital Group, LLC v Neuhaus, 70 AD3d 605, 607 [2010]).

Section 3211(a)(7) permits a court to consider affidavits and other evidence to determine whether the plaintiff has a cause of action, while accepting the plaintiff’s factual submissions as true and giving them every favorable inference.

Martino v. Stolzman · filed 2010-06-11(a)(7)

In determining a motion under CPLR 3211 (a) (7), “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one . . . Affidavits and other evidentiary material may also be considered to establish conclusively that plaintiff has no cause of action . . . Any facts ... in the complaint and submissions in opposition to the motion to dismiss are accepted as true, and the benefit of every possible favorable inference is afforded to the plaintiff’ (Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005] [internal quotation marks omitted]).

On a CPLR 3211(a)(7) motion, the court accepts the complaint’s alleged facts as true, gives the plaintiff every favorable inference, and dismisses a claim that fails to state a cause of action.

McCulloch v. Town of Milan · filed 2010-06-15(a)(7)

Furthermore, the Supreme Court properly granted the motion ... to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). ... Accepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every favorable inference (see ...), the amended complaint fails to state a cause of action to recover the consultants’ fees under the theories of money had and received (see ...), replevin (see ...), or conversion (see ...).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint, accepts its allegations as true, and gives the plaintiff every possible inference.

Plumitallo v. Hudson Atlantic Land Co. · filed 2010-06-15(a)(7)

Moreover, affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible inference, as a court must on a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the third cause of action sufficiently pleaded unjust enrichment against the defendant Long Beach Venture, LLC (see Cruz v McAneney, 31 AD3d 54, 59 [2006]; Citibank, N.A. v Walker, 12 AD3d 480, 481 [2004]).

On a motion under CPLR 3211(a)(7), the court liberally construes the complaint, accepts its alleged facts as true, and gives the plaintiff every possible inference when deciding whether it states a claim.

Velez v. Captain Luna's Marina · filed 2010-06-22(a)(7)

“On a motion to dismiss the complaint 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”

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

New York State Ass'n of Enrolled Agents, Inc. v. New York State Department of Taxation & Finance · filed 2010-07-06(a)(7)

We 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.”

On a motion to dismiss for failure to state a cause of action, a court may consider the plaintiff’s affidavits to remedy defects in the complaint.

Ryan v. Cover · filed 2010-07-06(a)(7)

In addition, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]; Pike v New York Life Ins. Co., 72 AD3d at 1049).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the pleadings, accepts the allegations as true, gives plaintiffs every favorable inference, and considers submissions opposing the motion.

Cunningham v. City of New York · filed 2010-07-20(a)(7)

On defendant’s motion addressed to the adequacy of plaintiffs’ pleadings (see CPLR 3211 [a] [7]), we must afford the pleadings a liberal construction, accept the allegations as true, provide plaintiffs the benefit of every favorable inference, and ascertain whether the pleadings, as augmented by plaintiffs’ submission in opposition to the motion, manifest any cause of action cognizable at law (see Nonnon v City of New York, 9 NY3d 825 [2007]).

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint, accepts its alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit any cognizable legal theory.

Feldman v. Finkelstein & Partners, LLP · filed 2010-08-31(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87 [1994]), accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88; Sokol v Leader, 74 AD3d 1180 [2010]; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 929-930 [2010]; Nelson v Roth, 69 AD3d 912 [2010]; Morales v AMS Mtge. Servs., Inc., 69 AD3d 691, 692 [2010]; Matter of Doman, 68 AD3d 862, 863 [2009]).

On a motion to dismiss for failure to state a cause of action, the court may consider the complaint and evidentiary material submitted to remedy defects in it.

Corsello v. Verizon New York, Inc. · filed 2010-09-14(a)(7)

As this is a motion to dismiss, the Court may look only to the amended complaint and any evidentiary material submitted to remedy defects in the amended complaint in ascertaining whether a cause of action has been stated (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

On a motion to dismiss under CPLR 3211(a)(7), the court presumes pleaded facts true, draws every favorable inference, and asks whether they fit a cognizable legal theory.

Dickinson v. Igoni · filed 2010-09-14(a)(7)

“In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true, and the court must afford those allegations every favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory”

A CPLR 3211(a)(7) motion should be denied when the allegations state a recognizable cause of action.

Dana v. Shopping Time Corp. · filed 2010-09-21(a)(7)

In view of the foregoing, those branches of Bracha’s motion which were to dismiss the complaint insofar as asserted against him by the appellants should have been denied.

Section 3211(a)(7) requires the court to determine whether the pleading’s allegations, taken together, state a legally cognizable cause of action.

Luciere v. Rahner · filed 2010-09-29(a)(7)

On a motion to dismiss for failure to state a cause of action, pursuant to 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.”

On a motion to dismiss for failure to state a cause of action, the court accepts the pleaded factual allegations as true when deciding whether they state a claim.

Agoglia v. Benepe · filed 2010-10-26(a)(7)

Accepting, as we must, this allegation as true (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]), the petitioner adequately stated a cause of action to abate a public nuisance.

Section 3211(a)(7) does not warrant dismissal when the complaint states a cause of action for fraudulent inducement.

Chan v. Society of Shaolin Temple, Inc. · filed 2010-11-03(a)(7)

Since Shi’s motion merely asserts that he is moving to dismiss under article 32, without specifying which provision of the statute, the court will briefly note that the action is also not amenable to dismissal under CPLR 3211 (a) (7).

On a motion to dismiss under CPLR 3211(a)(7), a pleading survives if its factual allegations, taken together, state any cognizable cause of action.

RBE Northern Funding, Inc. v. Stone Mountain Holdings, LLC · filed 2010-11-09(a)(7)

“Upon a motion to dismiss, the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, then the motion will fail”

Section 3211(a)(7) permits consideration of submitted evidence, but dismissal requires the defendant to show without significant dispute that a material fact alleged in the complaint is not a fact at all.

Simpson v. Alter · filed 2010-11-09(a)(7)

“Where evidentiary material is submitted on a CPLR 3211 (a) (7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted”

On a motion to dismiss for failure to state a cause of action, the court presumes the pleaded facts true, gives them every favorable inference, and asks whether they state a cognizable claim.

Khoury v. Khoury · filed 2010-11-16(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded must be presumed to be true and accorded every favorable inference, and the 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” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010]; Gershon v Goldberg, 30 AD3d 372, 373 [2006]).

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.

Flandera v. AFA America, Inc. · filed 2010-11-19(a)(7)

“In determining whether a complaint fails to state a cause of action, a court is required to ‘accept the facts as alleged in the complaint as true, accord plaintiff! 3 the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Daley v County of Erie, 59 AD3d 1087, 1087 [2009], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see generally CPLR 3211 [a] [7]).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s factual allegations as true and gives the plaintiff the benefit of favorable inferences.

Cenzon-DeCarlo v. Mount Sinai Hospital · filed 2010-12-07(a)(7)

In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint, the plaintiff can succeed on any reasonable view of the facts stated, and the court is required to accord the plaintiff the benefit of all favorable inferences which may be drawn from the pleading, without expressing an opinion as to whether the plaintiff can ultimately establish the truth of the allegations before the trier of fact.

On a motion to dismiss for failure to state a cause of action, the court construes the complaint liberally, accepts its factual allegations as true, and gives the plaintiff every favorable inference.

Hense v. Baxter · filed 2010-12-14(a)(7)

The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Katz v Katz, 55 AD3d 680, 682 [2008]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

Under CPLR 3211(a)(7), courts accept the complaint’s allegations as true and grant dismissal only if the alleged facts fit no cognizable legal theory.

Rodrigues-Lytwyn v. Roman Catholic Diocese of Brooklyn · filed 2010-12-14(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, and the motion should be granted only if the facts as alleged do not fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Peterec-Tolino v Harap, 68 AD3d 1083, 1084 [2009]).

Section 3211(a)(7) permits a motion to dismiss a claim that does not state a cause of action.

MBIA Insurance v. GMAC Mortgage LLC · filed 2010-12-14(a)(7)

CPLR 3211 (a) (7) allows a party to move for dismissal of certain claims if they do not “state a cause of action.”

Under CPLR 3211(a)(7), a counterclaim states a cause of action when its allegations, accepted as true and read liberally with every favorable inference, support a claim for relief.

Meerabux v. Henderson · filed 2010-12-21(a)(7)

Moreover, affording the defendant’s answer a liberal construction, and accepting the allegations of the defendant’s counterclaim as true while according them the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Veraldi v American Analytical Labs., 271 AD2d 599, 600 [2000]), we find that the counterclaim adequately stated a cause of action to recover damages for the plaintiff’s alleged wrongful conduct. Accordingly, the Supreme Court erred in granting that branch of the plaintiffs motion which was pursuant to CPLR 3211 (a) (7) to dismiss the defendant’s counterclaim.

When evidence is submitted on a motion to dismiss under § 3211(a)(7), the court determines whether the plaintiff has a cause of action, rather than whether the complaint states one.

Thomas v. LaSalle Bank National Ass'n · filed 2010-12-21(a)(7)

When evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Scoyni v Chabowski, 72 AD3d at 793; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]).

On a motion to dismiss for failure to state a cause of action, section 3211 requires liberal construction of the pleading, acceptance of its alleged facts as true, and every favorable inference for the plaintiff.

Board of Managers of Oyster Point Condominium v. Nyce · filed 2010-12-21(a)(7)

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87-88 [1994]) and the motion court must accord the plaintiff “the benefit of every possible favorable inference,” accept the facts alleged in the petition/complaint as true, and “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d at 87-88).

Section 3211(a)(7) requires denial of a motion to dismiss when the complaint’s factual allegations, taken together, state a cognizable cause of action.

Castillo v. Frenkel · filed 2010-12-23(a)(7)

In determining a motion to dismiss 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]; see Wilner v Allstate Ins. Co., 71 AD3d 155 [2010]).

Under section 3211(a)(7), documents submitted on a motion to dismiss warrant dismissal only if they establish that a material allegation is not a fact and no significant dispute exists about it.

Simkin v. Blank · filed 2011-01-04(a)(7)

With respect to the branch of defendant’s motion based upon CPLR 3211 (a) (7), even though defendant submitted documents, “dismissal should not eventuate” unless she shows that a material fact alleged by plaintiff “is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Section 3211(a)(7) requires courts to accept pleaded facts as true, give the plaintiff every possible inference, and determine whether the alleged facts fit a cognizable legal theory.

Holster v. Cohen · filed 2011-01-11(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as 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 Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Sokol v Leader, 74 AD3d 1180 [2010]).

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

Mehl v. Mehl · filed 2011-01-18(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the pleading is to be afforded a liberal construction (see Kempf v Magida, 37 AD3d 763, 764 [2007]).

On a CPLR 3211(a)(7) motion, the question is whether the plaintiff has a cause of action, even if the pleading does not state it precisely.

Gizara v. New York Times Co. · filed 2011-01-20(a)(7)

When the motion is brought under CPLR 3211 (a) (7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Leon v Martinez, 84 NY2d 83, 88 [1994] [internal quotation marks and citations omitted]).

On a motion to dismiss for failure to state a cause of action, the court must construe the pleading liberally, accept its alleged facts as true, give the plaintiff every possible inference, and decide whether those facts fit a cognizable legal theory.

Otto v. Melman · filed 2011-01-25(a)(7)

“On a motion to dismiss the complaint 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” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 AD3d 141, 145 [2009]).

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

Putter v. Putter · filed 2011-01-25(a)(7)

“On a motion to dismiss the complaint 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”

On a motion under CPLR 3211(a)(7), the court assumes the petitioner’s allegations are true but may dismiss if they do not establish entitlement to relief.

Al-Ber, Inc. v. New York City Department of Finance · filed 2011-01-25(a)(7)

Assuming the truth of the petitioner’s allegations, as we, must at this stage of the proceeding (see Matter of Town of Riverhead v New York State Dept. of Envtl., 50 AD3d 811, 813 [2008]; Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 594 [2005]), the petitioner failed to demonstrate that it is entitled to a tax exemption under RPTL 420-a. ... Accordingly, the Supreme Court properly granted the respondents’ cross motion pursuant to CPLR 3211 (a) (7) and 7804 (f), and dismissed the proceeding.

CPLR 3211(a)(7) requires dismissal when a complaint fails to state a claim, even after its allegations are accepted as true and given every favorable inference.

State of New York Workers' Compensation Board v. 26-28 Maple Avenue, Inc. · filed 2011-01-27(a)(7)

Thus, affording a liberal construction to the third-party complaint, accepting its allegations as true, and according the benefit of every favorable inference to Hudon (see Bordeleau v State of New York, 74 AD3d 1688, 1688 [2010]), no claim pursuant to General Business Law § 349 was stated, and SZW’s motion to dismiss the claim pursuant to CPLR 3211 (a) (7) should have been granted.

On a motion under CPLR 3211 (a) (7), the court accepts the pleading’s allegations as true and determines whether they state a cause of action.

Albany Law School v. New York State Office of Mental Retardation & Developmental Disabilities · filed 2011-01-27(a)(7)

On a motion to dismiss, under CPLR 7804 (f) or CPLR 3211 (a) (7), the court must look at the petition/complaint itself, accepting all of its allegations as true, to determine whether a cause of action exists (see Schmidt & Schmidt, Inc. v Town of Charlton, 68 AD3d 1314, 1315 [2009]; Matter of Green Harbour Homeowners’ Assn. v Town of Lake George Planning Bd., 1 AD3d 744, 745 [2003]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and asks whether the facts fit a cognizable legal theory.

NIAGARA FRONTIER TRANSPORTATION AUT, BURTON, IRIC v · filed 2011-02-10(a)(7)

Matteliano’s motion to dismiss was based solely on CPLR 3211 (a) (7), and we therefore 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 . . . ‘[T]he criterion is whether [plaintiff] has a cause of action, not whether he has stated one’ ” (Leon v Martinez, 84 NY2d 83, 87-88).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s facts as true and gives the plaintiff every possible favorable inference.

DIAZ, DELIRIS v. LITTLE REMEDIES CO., INC. · filed 2011-02-18(a)(7)

Finally, “accept[ing] the facts as alleged in the complaint as true [and] accord[ing] plaintiff[] the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87), we conclude that the complaint asserts breach of warranty and negligence causes of action.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and gives the plaintiff every possible favorable inference.

Diaz v. Little Remedies Co. · filed 2011-02-18(a)(7)

Finally, “accepting] the facts as alleged in the complaint as true [and] according] plaintiffl ] the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]), we conclude that the complaint asserts breach of warranty and negligence causes of action.

On a motion to dismiss for failure to state a cause of action, bare legal conclusions and factual claims flatly contradicted by documentary evidence are not presumed true.

Heller v. Frota Oceanica E Amazonica, S.A. · filed 2011-02-22(a)(7)

Bare legal conclusions and factual claims which are flatly contradicted by documentary evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]; Garber v Board of Trustees of State Univ. of N.Y., 38 AD3d 833, 834 [2007]).

Under CPLR 3211(a)(7), a pleading survives dismissal if its alleged facts, taken as true, state a cognizable cause of action.

U.S. Bank National Ass'n v. Stein · filed 2011-02-22(a)(7)

“Upon a motion to dismiss [for failure to state a cause of action], the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, then the motion will fail”

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint, accepts its alleged facts as true, and gives plaintiffs every possible inference.

Viola v. Giordano · filed 2011-03-01(a)(7)

Affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every possible inference, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action (see Leon v Martinez, 84 NY2d 83, 87 [1994]), we find that the eighth cause of action sufficiently pleaded a cause of action alleging unjust enrichment against the defendant Dominick Cervi and should not have been dismissed insofar as asserted against him (see Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 AD3d 141, 149 [2009]; Schwartz v Schwartz, 55 AD3d 897, 898 [2008]).

On a motion to dismiss for failure to state a cause of action, the court treats the counterclaim’s allegations as true; a conclusory assertion that the counterclaim is insufficient does not establish a defect.

LaFiosca v. LaFiosca · filed 2011-03-03(a)(7)

Plaintiffs application seeking to dismiss defendant’s counterclaim for failing to state a cause of action pursuant to CPLR 3211 (a) (7) is also denied. Plaintiffs moving papers provide one, simple, conclusory statement that defendant’s counterclaim is “insufficient.” Plaintiff fails to address what elements are missing from defendant’s counterclaim or how it is defective. In addition to the foregoing, this court must view defendant’s allegations as true for the purpose of the instant motion (see Vestal v Vestal, 273 AD2d 461 [2d Dept 2000]).

On a motion under CPLR 3211(a)(7), the court accepts factual allegations as true, gives the plaintiff favorable inferences, and asks whether the alleged facts fit a cognizable legal theory.

Stanley v. Amalithone Realty, Inc. · filed 2011-03-17(a)(7)

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the factual allegations in the complaint and supporting affidavits as true, accord plaintiff all favorable inferences which may be drawn from the facts, and determine whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morone v Morone, 50 NY2d 481, 484 [1980]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

On a motion to dismiss under CPLR 3211 (a) (7), bare legal conclusions and factual claims flatly contradicted by evidence are not presumed true.

NIAGARA COUNTY v. POWER AUTHORITY OF THE STATE OF NEW, YORK · filed 2011-03-25(a)(7)

In any event, we agree with respondents that the court erred in denying their motions to dismiss the amended petition for failure to state a cause of action pursuant to CPLR 3211 (a) (7). “ ‘It is well settled that bare legal conclusions and factual claims [that] 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’ ” (Olszewski v Waters of Orchard Park, 303 AD2d 995, 995; see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 194).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint, accepts its alleged facts as true, and gives the plaintiff every favorable inference.

Molander v. Pepperidge Lake Homeowners Ass'n · filed 2011-03-29(a)(7)

Affording the complaint a liberal construction, accepting all facts alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference, as required on a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint fails to state causes of action against the Trust and certain other defendant unit owners to recover damages for private nuisance (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

A motion under CPLR 3211(a)(7) fails if the alleged facts, taken as true with every favorable inference, state a recognizable cause of action.

347 Central Park Associates, LLC v. Pine Top Associates, LLC · filed 2011-04-05(a)(7)

A motion to dismiss a complaint for failure to state a cause of action 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’ ” (Sheroff v Dreyfus Corp., 50 AD3d 877, 877-878 [2008], quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]).

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

Burnett v. Pourgol · filed 2011-04-12(a)(7)

CPLR 3211 (a) (7) provides for dismissal on the ground that a pleading fails to state a cause of action.

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

Crown Associates, Inc. v. Zot, LLC · filed 2011-04-12(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a court must “accept the facts as alleged in the complaint as true, accord [the] 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 under CPLR 3211(a)(7), the court accepts the complaint’s facts as true, gives plaintiffs every favorable inference, and asks whether those facts fit a cognizable legal theory.

Jiminez v. Shahid · filed 2011-04-19(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]; see Vitarelle v Vitarelle, 65 AD3d 1034 [2009]). Applying this standard, the plaintiffs have failed to set forth a cognizable cause of action to recover damages for negligence against Drenis.

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 possible inference, and asks whether those facts fit any cognizable legal theory.

Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc. · filed 2011-04-26(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 the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference, the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a CPLR 3211(a)(7) motion, 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.

Ford v. Fink · filed 2011-05-03(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 32ll (a) (7), the court must “ ‘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’ ” (Sokol v Leader, 74 AD3d 1180, 1181 [2010], quoting Nonnon v City of New York, 9 NY3d 825, 827 [2007]; see Gershon v Goldberg, 30 AD3d 372, 373-374 [2006]).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and gives them every favorable inference to determine whether they fit a cognizable legal theory.

Doe v. City of Schenectady · filed 2011-05-05(a)(7)

On such a motion, “the allegations in the complaint are accepted as true and accorded the benefit of every possible favorable inference to determine if the facts, as alleged, fit within any cognizable legal theory” (Keehle v Diocese of Syracuse, 80 AD3d 974, 974 [2011] [internal quotation marks and citation omitted]; see Matter of Niagara Mohawk Power Corp. v State of New York, 300 AD2d 949, 952 [2002]).

A change in circumstances after filing is relevant to a motion to dismiss for failure to state a cause of action.

State v. Maurice G. · filed 2011-05-06(a)(7)

A change in circumstances subsequent to the filing is relevant to the inquiry on a motion to dismiss for failure to state a claim.

On a motion under CPLR 3211(a)(7), bare legal conclusions and factual claims flatly contradicted by the record are not presumed true.

Jaymer Communications, Inc. v. Associated Locksmiths of America, Inc. · filed 2011-05-10(a)(7)

However, “bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true” (Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022 [2007]; see Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848 [2007]).

On a motion to dismiss under CPLR 3211(a)(7), the court must accept the complaint’s alleged facts as true and give the plaintiff every favorable inference when deciding whether it states a legally cognizable claim.

Rahman v. Incagliato · filed 2011-05-10(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the motion 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 Curry v Dollard, 52 AD3d 642, 643 [2008]; Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 672 [2006]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint, accepts its allegations as true, and gives the plaintiff every possible favorable inference.

Stone Ridge Country Properties Corp. v. Mohonk Oil Co. · filed 2011-05-12(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 plaintiff . . . the benefit of every possible favorable inference”

On a motion to dismiss for failure to state a cause of action, the court accepts the pleaded allegations as true when deciding whether the claim is adequately stated.

Agoglia v. Benepe · filed 2011-05-17(a)(7)

Accepting, as we must, this allegation as true ... the petitioner adequately stated a cause of action to abate a public nuisance.

Section 3211(a)(7) asks whether the pleading states a cause of action, rather than whether the claimant can ultimately prove one.

Marist College v. Chazen Environmental Services, Inc. · filed 2011-05-24(a)(7)

“When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action” (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010]).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s factual allegations as true, gives the plaintiff every possible inference, and asks whether those facts fit a cognizable legal theory.

Sanford/Kissena Owners Corp. v. Daral Properties · filed 2011-05-24(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 accept the facts alleged in the complaint as 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 Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and gives them every possible favorable inference.

Tesone v. Hoffman · filed 2011-05-24(a)(7)

The defendant’s remaining arguments for dismissal fail since we must accept the allegations of the amended complaint as true and accord them the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Datena v JP Morgan Chase Bank, 73 AD3d 683, 684 [2010]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true and gives the plaintiff every favorable inference.

Ewen v. Maccherone · filed 2011-05-26(a)(7)

Accepting plaintiffs’ allegations as true, and according them the benefit of every favorable inference, as we must do on a motion to dismiss pursuant to CPLR 3211 (a) (7) ... we conclude that plaintiffs have failed to state a cause of action for private nuisance against their neighboring defendants.

On a motion under CPLR 3211(a)(7), pleaded facts are presumed true and given every favorable inference, but the allegations must together state a legally cognizable cause of action.

Stormes v. United Water New York, Inc. · filed 2011-05-31(a)(7)

“In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded must be presumed to be true and accorded every favorable inference, and the 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” (Khoury v Khoury, 78 AD3d 903, 904 [2010] [internal quotation marks and citations omitted]).

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

Irina Kiblitsky, M.D. v. Lutheran Medical Center · filed 2011-06-02(a)(7)

Under CPLR 3211 (a) (7), dismissal is warranted if the pleading fails to state a cause of action.

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

Hunger v. Board of Education of Garrison Union Free School District · filed 2011-06-07(a)(7)

In considering a motion to dismiss a pleading for failure to state a cause of action, the court must accept the allegations of the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Holster v Cohen, 80 AD3d 565 [2011]; Sheriff’s Silver Star Assn., Inc. v County of Oswego, 27 AD3d 1104, 1105-1106 [2006]; Gill v Bowne Global Solutions, Inc., 8 AD3d 339, 339-340 [2004]; Cuomo v Mahopac Natl. Bank, 5 AD3d 621, 622 [2004]).

On a motion to dismiss for failure to state a cause of action, evidentiary materials do not warrant dismissal unless they establish that a material fact alleged in the complaint is not a fact and that no significant dispute exists about it.

Ascani v. EI Du Pont De Nemours & Co. · filed 2011-06-14(a)(7)

Here, the evidentiary materials submitted by the defendant WASCO Wholesale Auto Supply Corp. (hereinafter the appellant), consisting largely of affidavits and deposition testimony, did not establish that “ ‘a material fact as claimed by the pleader to be one is not a fact at all’ ” and that “ ‘no significant dispute exists regarding it’ ” (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Thus, the Supreme Court properly denied that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

On a motion under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true, gives the plaintiff every reasonable favorable inference, and asks whether the alleged facts fit a cognizable legal theory.

Kraut v. City of New York · filed 2011-06-21(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the motion court must accept the facts alleged in the complaint as true, afford them every reasonable inference favorable to the plaintiff, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Holster v Cohen, 80 AD3d 565, 566 [2011]).

Section 3211(a)(7) does not permit dismissal when the complaint states a valid cause of action and the defendants’ asserted factual defense has not been established.

Ass'n v. Town of Southampton · filed 2011-06-28(a)(7)

Accordingly, the Supreme Court should not have granted the defendants’ cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

On a motion to dismiss under section 3211(a)(7), the court must construe the complaint liberally, accept its alleged facts as true, and give the pleading every favorable inference.

Dune Deck Owners Corp. v. Liggett · filed 2011-06-28(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be afforded a liberal construction, and the facts as alleged therein are to be accepted as true, with the pleading being accorded every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss for failure to state a cause of action, 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.

Castillo v. Balsamo Rosenblatt & Cohen, P.C. · filed 2011-06-30(a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), 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.

On a motion to dismiss for failure to state a cause of action, courts construe the pleadings liberally, accept the complaint’s allegations as true, and give plaintiffs every favorable inference.

Gray v. Schenectady City School District · filed 2011-07-14(a)(7)

When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must construe the pleadings liberally, accept the allegations of the complaint as true and provide the plaintiffs the benefit of every possible favorable inference ... Applying this standard, Supreme Court erred in denying defendant’s motion as to the first cause of action for intentional infliction of emotional distress, but correctly denied the part of defendant’s motion seeking dismissal of the second and third causes of action for negligent supervision and negligent retention.

On a motion to dismiss for failure to state a cause of action, the court views the plaintiff’s contentions favorably and may allow a claim for attorneys’ fees to proceed when the contract’s terms remain uncertain.

Rodriguez v. Allstate Insurance · filed 2011-07-27(a)(7)

Therefore, taking the plaintiff’s contentions in their most favorable light, it would be imprudent for this court to dismiss the third cause of action pursuant to CPLR 3211 (a) (7) to the extent plaintiff seeks attorneys’ fees.

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

Fox v. Marshall · filed 2011-08-09(a)(7)

In determining a motion to dismiss the complaint for failure to state a cause of action, the court must “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 pre-answer motion under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true, draws favorable inferences, and asks whether they reveal a cognizable cause of action.

MatlinPatterson ATA Holdings LLC v. Federal Express Corp. · filed 2011-09-01(a)(7)

On review of a pre-answer motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 [a] [7]), the court must accept all of the allegations in the complaint as true, and, drawing all inferences from those allegations in the light most favorable to the plaintiff, determine whether a cognizable cause of action can be discerned therein, not whether one has been properly stated (Rovello v Orofino Realty Co., 40 NY2d 633, 634, 636 [1976]; Dulberg v Mock, 1 NY2d 54, 56 [1956]; Hirschhorn v Hirschhorn, 194 AD2d 768 [1993]).

On a motion to dismiss for failure to state a cause of action, the court construes the complaint liberally, accepts its allegations as true, and gives the plaintiff every possible inference.

Wang v. New York State Department of Health · filed 2011-09-06(a)(7)

Under CPLR 3211 (a) (7), “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 Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [3d Dept 2007]).

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.

Pappas v. Tzolis · filed 2011-09-15(a)(7)

Further, in considering whether Tzolis demonstrated that plaintiffs have not stated the various causes of action they assert in their complaint, we are required to accept the facts as alleged 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, the court must liberally construe the pleading.

Berman v. Christ Apostolic Church International Miracle Center, Inc. · filed 2011-09-27(a)(7)

On a motion to dismiss for failure to state a cause of action, the pleading is to be afforded a liberal construction (see CPLR 3026).

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint, treats its allegations as true, and gives the plaintiff every possible favorable inference.

American Architectural, Inc. v. Marino · filed 2011-10-03(a)(7)

In determining a motion to dismiss under CPLR 3211 (a) (7), the complaint must be liberally construed, with the facts alleged deemed to be true, and the plaintiff accorded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Burnett v Pourgol, 83 AD3d 756, 757 [2011]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint, accepts its allegations as true, and gives the plaintiff every possible favorable inference.

Prestige Caterers, Inc. v. Siegel · filed 2011-10-04(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 plaintiff. . . ‘the benefit of every possible favorable inference’ ”

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s factual allegations as true, draws favorable inferences for the plaintiff, and asks whether any reasonable view of the facts supports a claim.

Vitale v. Rowland · filed 2011-10-04(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” (Schneider v Hand, 296 AD2d 454, 454 [2002]; see Hill v Murphy, 63 AD3d 680, 681 [2009]).

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

PRESTON, TRACY v. APCH, INC. · filed 2011-10-07(a)(7)

On a motion pursuant to CPLR 3211 (a) (7), we 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 . . . ‘[T]he criterion is whether [plaintiff] has a cause of action, not whether he [or she] has stated one’ ” (Leon v Martinez, 84 NY2d 83, 87-88; see Burton v Matteliano, 81 AD3d 1272, 1274, lv denied 17 NY3d 703).

On a motion to dismiss under CPLR 3211(a)(7), the court construes the complaint liberally, accepts its alleged facts as true, and gives the plaintiff every favorable inference when deciding whether the allegations fit a cognizable legal theory.

High Tides, LLC v. DeMichele · filed 2011-10-25(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (see CPLR 3026; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), and the court must accord the plaintiff “the benefit of every possible favorable inference,” accept the facts alleged in the complaint as true, and “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d at 87-88).

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

Mabel R. v. Rayshawn D. · filed 2011-10-26(a)(7)

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. Courts must accept the facts 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”

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s alleged facts as true and gives the plaintiff every favorable inference.

Orchid Construction Corp. v. Gonzalez · filed 2011-11-01(a)(7)

Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83 [1994]), the complaint fails to state a cause of action to recover damages for conversion against Malabre.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and gives the plaintiff every favorable inference.

Orchid Construction Corp. v. Gottbetter · filed 2011-11-01(a)(7)

Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83 [1994]), the complaint fails to state a cause of action to recover damages for conversion against Malabre.

On a motion to dismiss for failure to state a cause of action, the nonmoving party need not rebut a defense unless the motion is converted to one for summary judgment.

Giunta's Meat Farms, Inc. v. Pina Construction Corp. · filed 2011-11-09(a)(7)

On a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party unless the motion is converted into one for summary judgment pursuant to CPLR 3211 (c) (see Sokol v Leader, 74 AD3d 1180, 1181 [2010]).

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

Giannasca v. Lind · filed 2011-11-10(a)(7)

“In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a 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.’ ”

CPLR 3211(a)(7) requires the court to determine whether the pleading states a cause of action.

Trotta v. Ollivier · filed 2011-11-15(a)(7)

When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180 [2010]; Foley v D’Agostino, 21 AD2d 60, 64-65 [1964]).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action and requires liberal construction of the pleadings, acceptance of allegations as true, and every favorable inference for the plaintiff.

Landon v. Kroll Laboratory Specialists, Inc. · filed 2011-11-22(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 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]). ... Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) is denied.

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint, accepts its alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Grant v. Aurora Loan Services · filed 2011-10-25(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

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

Winkler v. Battery Trading, Inc. · filed 2011-11-22(a)(7)

When determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the pleading must be afforded a liberal construction, and the facts alleged in the complaint must be accepted as true, with the plaintiff accorded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(7) requires pleadings to be construed liberally, with alleged facts accepted as true and viewed in the plaintiff's favor.

Gioeli v. Vlachos · filed 2011-11-22(a)(7)

Further, in considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction, the facts alleged in the complaint are accepted as true, and the complaint is construed in a light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755, 757 [2009]).

Under CPLR 3211(a)(7), dismissal is appropriate only if the complaint’s factual allegations, accepted as true and read liberally with every favorable inference, disclose no legally cognizable cause of action.

Jacobson v. Chase Bank · filed 2011-11-30(a)(7)

Dismissal of a complaint pursuant to CPLR 3211 (a) (7) is appropriate only where, accepting the facts as pleaded to be true, construing the complaint liberally, and according the plaintiff the benefit of every possible favorable inference, no cause of action cognizable at law can be discerned from the factual allegations of the complaint (see e.g. Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss for failure to state a cause of action, the court treats the complaint’s allegations as true and grants the plaintiff every favorable inference.

Kosowsky v. Willard Mountain, Inc. · filed 2011-12-01(a)(7)

Treating plaintiffs’ allegations as true and granting them the benefit of every favorable inference, this cause of action states a claim, and should not have been dismissed (see Fourth Branch Assoc. Mechanicville v Niagara Mohawk Power Corp., 235 AD2d at 965-966; see also Just-Irv Sales v Air-Tite Bus. Ctr., 237 AD2d at 794-795).

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

Marom v. Anselmo · filed 2011-12-06(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as 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 Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2011]; Peery v United Capital Corp., 84 AD3d 1201 [2011]).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, including where its allegations consist of bare legal conclusions.

Cangro v. Marangos · filed 2011-12-08(a)(7)

Apart from the fact that the complaint amounts to an impermissible collateral attack on plaintiffs divorce judgment, it fails to state a cause of action (see CPLR 3211 [a] [7]). The fraud allegations are insufficiently detailed (see CPLR 3016 [b]), and the remaining allegations consist of bare legal conclusions (see Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233 [1994]).

Under CPLR 3211(a)(7), evidentiary material does not justify dismissal unless it shows that a material fact alleged in the complaint is not a fact at all.

Crane v. BPC Management Corp. · filed 2011-12-13(a)(7)

The evidentiary material the defendants submitted failed to demonstrate that a material fact alleged in the complaint was “not a fact at all” (see Guggenheimer v Ginzburg, 43 NY2d at 275; Quesada v Global Land, Inc., 35 AD3d 575, 576 [2006]). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).

On a motion to dismiss for failure to state a cause of action, 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.

Miglino v. Bally Total Fitness of Greater New York, Inc. · filed 2011-12-27(a)(7)

In determining a motion for failure to state a cause of action, the court must “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]; see Nonnon v City of New York, 9 NY3d 825 [2007]).

Under subsection (a)(7), a complaint should not be dismissed based on a defendant’s evidence when that evidence fails to establish conclusively that a material alleged fact is false.

County of Suffolk v. MHC Greenwood Village, LLC · filed 2012-01-10(a)(7)

Here, the evidence submitted by the defendants did not demonstrate that any fact alleged in the complaint was undisputedly “not a fact at all” (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

On a CPLR 3211(a)(7) motion, a complaint’s bare legal conclusions are not presumed true.

Fleyshman v. Suckle & Schlesinger, PLLC · filed 2012-01-10(a)(7)

Further, the plaintiffs allegation that the defendants “willfully delayed [her] recovery with a view to their own ends and benefit” is a bare legal conclusion, “which is not entitled to the presumption of truth normally afforded to the allegations of a complaint” (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969 [2010]; see Judiciary Law § 487 [2]).

On a motion to dismiss for failure to state a cause of action, a court liberally construes the complaint and gives the plaintiff every possible favorable inference.

Martin v. Restaurant Associates Events Corp. · filed 2012-01-12(a)(7)

Accordingly, the court views plaintiffs as having elected to stand on their pleading; the question thus distills to whether plaintiffs have presented the necessary elements for a cognizable cause of action, giving their complaint a liberal construction and the benefit of every possible favorable inference.

On a motion to dismiss under CPLR 3211(a)(7), courts accept the complaint’s facts as true, give plaintiffs every favorable inference, and ask whether the alleged facts fit a cognizable legal theory.

Henderson v. Kingsbrook Jewish Medical Center · filed 2012-01-17(a)(7)

In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must “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]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]).

On a motion to dismiss under Section 3211(a)(7), the court accepts the complaint’s facts as true and gives the plaintiff all favorable inferences in deciding whether the complaint states a cognizable claim.

ALDEN, ELIZABETH v. BRINDISI, MURAD & BRINDISI-PEARLMAN · filed 2012-01-31(a)(7)

Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) in this legal malpractice action. Accepting as true the facts set forth in the complaint and according plaintiff the benefit of all favorable inferences arising therefrom, as we must in the context of the instant motion (see generally Leon v Martinez, 84 NY2d 83, 87-88), we conclude that the complaint fails to plead a cognizable theory for legal malpractice because it does not permit the inference that any alleged negligence by defendant was a proximate cause of plaintiff’s damages (see Pyne v Block & Assoc., 305 AD2d 213).

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

Knutt v. Metro International, S.A. · filed 2012-01-31(a)(7)

On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026), “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]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810 [2011]).

On a motion to dismiss for failure to state a cause of action, courts accept the pleadings as true, give the plaintiff every favorable inference, and may consider the plaintiff’s affidavit to sustain the pleading.

Hassan v. Wallach · filed 2012-02-07(a)(7)

The motion court’s analysis was proper. In any event, contrary to plaintiffs contention, the court engaged in a de novo review, afforded plaintiff every possible favorable inference, accepted his pleadings as true, and considered the affidavit plaintiff submitted in support of the motion in an effort to sustain his pleading (Underpinning & Found. Constructors v Chase Manhattan Bank, N.A., 46 NY2d 459, 462 [1979]; Ackerman v Vertical Club Corp., 94 AD2d 665 [1983]).

A complaint that merely sets forth bare legal conclusions fails to state a cause of action under CPLR 3211(a)(7).

Cangro v. Reitano · filed 2012-02-09(a)(7)

In any event, the complaint states no causes of action upon which relief may be granted, as it merely sets forth bare legal conclusions (see Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233 [1994]; CPLR 3211 [a] [7]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s factual allegations as true, gives the plaintiff favorable inferences, and asks whether any reasonable view of those facts supports the claim.

Center for Rehabilitation & Nursing at Birchwood, LLC v. S & L Birchwood, LLC · filed 2012-02-14(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” (Schneider v Hand, 296 AD2d 454, 454 [2002]). Here, insofar as asserted against the appellants, the complaint successfully pleaded a cause of action alleging conversion (see Schwartz v Schwartz, 55 AD3d 897, 898 [2008]; Nolfi Masonry Corp. v Lasker-Goldman Corp., 170 AD2d 363 [1991]; Plechavicius v Mendoza, 128 AD2d 763 [1987]).

On a motion under CPLR 3211(a)(7), the court must liberally construe the complaint, accept its allegations as true, and determine whether they state a cognizable claim.

Elie v. City of New York · filed 2012-02-14(a)(7)

“On a motion to dismiss the complaint 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” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a CPLR 3211 motion to dismiss, the court construes the pleading in the light most favorable to the plaintiff.

Henneberry v. Borstein · filed 2012-01-17

Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery (see Leder v Spiegel, 31 AD3d 266 [2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v Rowland 552 US 1257 [2008]).

On a CPLR 3211 motion, the complaint’s factual allegations are accepted as true.

Luxus Aviation, LLC v. Kerwin Media LLC · filed 2012-01-31

The complaint’s factual claims shall be accepted as true while evaluating defendants’ CPLR 3211 motion (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

On a CPLR 3211 motion to dismiss, the court accepts all allegations as true.

Kagan v. HMC-New York, Inc. · filed 2012-02-28

As much as we are obligated to accept all allegations as true on a CPLR 3211 motion to dismiss (Salles v Chase Manhattan Bank, 300 AD2d 226, 228 [1st Dept 2002]), in this case the plaintiff simply does not make any allegations at all that fall within the exclusions of the liability limitation provision.

On a CPLR 3211 motion to dismiss an Election Law special proceeding, the petition’s allegations must be deemed true.

Slisz v. Beyer · filed 2012-02-10(a)(7)

In Election Law special proceedings, as with other proceedings in which a party moves to dismiss the petition under CPLR 3211, the allegations of the petition must be deemed true (see Matter of Landry v Mansion, 65 AD3d 803, 804 [2009]).

On a motion to dismiss under CPLR 3211, the court must construe the complaint liberally and accept its allegations as true.

Posner v. Lewis · filed 2012-02-21

On a CPLR 3211 motion to dismiss, we are obligated to give the complaint a liberal construction and accept the allegations as true.

When evidence is submitted on a motion to dismiss for failure to state a cause of action, the court determines whether the claimant has a cause of action, not merely whether the pleading states one.

Kamhi v. EmblemHealth, Inc. · filed 2012-03-21(a)(7)

Where evidentiary material is adduced in support of a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), “the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one” (Meyer v Guinta, 262 AD2d 463, 464 [2d Dept 1999]).

On a motion to dismiss a family offense petition for failure to state a cause of action, the court may consider the petitioner’s affidavits to cure pleading defects and asks whether the petitioner has a claim.

Pamela N. v. Neil N. · filed 2012-03-29(a)(7)

Presented with a motion to dismiss pursuant to CPLR 3211 (a) (7), which is proper here in that family offense proceedings under Family Ct Act article 8 are civil in nature (see Family Ct Act § 812 [2] [b]), “a court may freely consider affidavits submitted by [the petitioner] to remedy any defects in the [petition]” (Leon v Martinez, 84 NY2d at 88), and “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d at 275).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the pleaded facts as true, gives the petitioner every favorable inference, and asks whether those facts support a cognizable legal theory.

Quiver Rock, LLC v. New York State Adirondack Park Agency · filed 2012-03-29(a)(7)

When presented with a motion to dismiss pursuant to CPLR 3211 (a) (7), “we must accept as true the facts as alleged in the [petitioner’s pleadings] and submissions in opposition to the motion, accord [the petitioner] 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 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

A motion to dismiss for failure to state a cause of action fails if the complaint’s factual allegations, taken together, state any legally cognizable claim.

United States Fire Insurance v. Raia · filed 2012-04-03(a)(7)

“On a motion to dismiss for failure to state a cause of action 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’ ”

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

Villarin v. Rabbi Haskel Lookstein School · filed 2012-04-12(a)(7)

In the complaint, which we must accept as true on a dismissal motion pursuant to CPLR 3211 (a) (7), plaintiff alleges that, in 2006, she began her employment as a nurse in defendant school’s nursery through fourth grade division (the Lower School).

On a motion to dismiss for failure to state a cause of action, the court does not decide whether the plaintiff can ultimately prove the allegations.

Haberman v. Zoning Board of Appeals of City of Long Beach · filed 2012-04-17(a)(7)

Whether the plaintiffs can ultimately establish the conflict of interest allegations should not have been “part of the calculus in determining [the] motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d at 19).

On a motion to dismiss for failure to state a cause of action, the court gives the plaintiff every favorable inference when reviewing the complaint.

Ovitz v. Bloomberg L.P. · filed 2012-03-27(a)(7)

In the context of a CPLR 3211 motion to dismiss, even affording plaintiff every favorable inference, as we must, when reviewing the pleadings and factual allegations of his complaint ( see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morone v Morone, 50 NY2d 481, 484 [1980]), plaintiff's failure to identify a cognizable injury proves fatal to his action against Bloomberg.

On a motion to dismiss for failure to state a cause of action, the court construes the pleading liberally, assumes its allegations are true, and gives the plaintiff every favorable inference.

Simkin v. Blank · filed 2012-04-03(a)(7)

On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference (see ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 227 [2011]).

Section 3211(a)(7) does not require dismissal merely because a cause of action is inartfully pleaded, if it adequately alleges a viable claim.

Village of Pomona v. Town of Ramapo · filed 2012-04-24(a)(7)

Here, while the fourth cause of action may have been “inartfully” pleaded (Leon v Martinez, 84 NY2d at 88), the appellant adequately alleged a viable cause of action, in effect, for “procedural infirmities in the adoption of the [rezoning] law under the . . . General Municipal Law” (Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 79; CPLR 7803 [3]).

Under CPLR 3211(a)(7), affidavits may supplement a complaint when determining whether it states a cause of action.

White Plains Cleaning Services, Inc. v. 901 Properties, LLC · filed 2012-04-24(a)(7)

Here, the complaint, as supplemented by affidavits, adequately states a cause of action sufficient to survive dismissal under CPLR 3211 (a) (7).

On a motion to dismiss for failure to state a cause of action, courts construe the pleadings liberally, accept the alleged facts as true, give the plaintiffs every possible inference, and determine whether the facts fit a cognizable legal theory.

Brumaghim v. Eckel · filed 2012-04-26(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), “we afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff[s] the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory” (Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452 [2010]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Keehle v Diocese of Syracuse, 80 AD3d 974, 974 [2011]).