N.Y. C.P.L.R. § 3211

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 them every favorable inference.

Gadman v. Strumpf · filed 2021-05-20(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 must be liberally construed, and all of the facts alleged therein must be accepted as true and accorded the benefit of every possible favorable inference to determine whether they fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Tooma v Grossbarth , 121 AD3d 1093, 1095 [2014]; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703-704 [2008]).

A CPLR 3211(a)(7) motion should be denied as academic when the court lacks personal jurisdiction over the defendants.

Klein v. Whirlpool Corp. · filed 2021-06-02(a)(7)

Since the court had not acquired jurisdiction over the defendants, it should have denied as academic that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failing to state a cause of action, instead of addressing that branch on the merits ( cf. DelGrosso v Carroll , 185 AD3d 901, 903-904).

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.

Doe v. Enlarged City Sch. Dist. of Middletown · filed 2021-06-02(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), a court must afford the pleading a liberal construction, accept all facts as alleged in 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 CPLR 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; 260 Mamaroneck Ave., LLC v Guaraglia , 172 AD3d 661, 662).

On a motion to dismiss for failure to state a cause of action, the court asks whether the pleading's factual allegations together show any legally cognizable cause of action.

Burke v. Newburgh Enlarged City Sch. Dist. · filed 2021-06-09(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).

A petition that incorporates detailed objections by reference is sufficiently specific to withstand a CPLR 3211(a)(7) motion to dismiss.

Matter of Morales v. Burgos · filed 2021-05-13(a)(7)

The Supreme Court properly denied Burgos's motion pursuant to CPLR 3211(a)(7) to dismiss the petition, inter alia, to invalidate the designating petition for lack of specificity. The petition seeks to invalidate the designating petition in its entirety for the reasons set forth in detail in the specifications of objections that were specifically incorporated into the pleading by reference. The incorporation by reference of the objections into the petition is sufficient ( see Matter of Lynch v Duffy , 172 AD3d 1370, 1372-1373; Matter of Oberle v Caracappa , 133 AD2d 202, 203).

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

Melchner v. Town of Carmel · filed 2021-06-16(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" ( Santoro v Poughkeepsie Crossings, LLC , 180 AD3d 12, 15).

Section 3211(a)(7) requires denial of a motion to dismiss a negligence claim when the complaint adequately states that cause of action.

RD Legal Funding Partners, LP v. Worby Groner Edelman & Napoli Bern, LLP · filed 2021-06-23(a)(7)

Here, the complaint adequately stated a cause of action alleging negligence, and thus, the Supreme Court should have denied that branch of the defendant's motion which was to dismiss that cause of action ( see Leon v Martinez , 193 AD2d at 789).

Under CPLR 3211(a)(7), conclusory and vague allegations do not state a cause of action, even when the alleged facts are accepted as true and the plaintiff receives favorable inferences.

Polite v. Marquis Marriot Hotel · filed 2021-06-23(a)(7)

Here, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every favorable inference ( see Leon v Martinez , 84 NY2d at 87-88), the complaint fails to state causes of action to recover damages for employment discrimination, unlawful retaliation, or hostile work environment ( see Forrest v Jewish Guild for the Blind , 3 NY3d 295). The allegations made in the complaint were conclusory and vague ( see Mira v Harder [Evans] , 177 AD3d 426, 426-427; DuBois v Brookdale Univ. Hosp. & Med. Ctr. , 29 AD3d 731, 732).

Under CPLR 3211(a)(7), a complaint may be dismissed when its allegations fail to support an element of a claim or an enforceable right to relief.

Besen v. Farhadian · filed 2021-06-24(a)(7)

"Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 142 [2017]).

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.

Edelman v. Berman · filed 2021-06-30(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shah v Exxis, Inc. , 138 AD3d 970, 971).

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.

Dubon v. Drexel · filed 2021-06-30(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court will 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" ( Tsinias Enters. Ltd. v Taza Grocery, Inc. , 172 AD3d 1271, 1272 [internal quotation marks omitted]).

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

Herson v. Marzullo · filed 2021-07-02(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, we presume the facts in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into 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 court construes the complaint liberally, assumes the alleged facts are true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Emby Hosiery Corp. v. Tawil · filed 2021-07-07(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88).

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.

Leonard v. Cummins · filed 2021-07-08(a)(7)

To determine whether a complaint states a cause of action, this Court "afford[s] the complaint a liberal construction, accept[s] the facts alleged as true, accord[s] the plaintiff the benefit of every favorable inference and determine[s] only whether the alleged facts fit within any cognizable legal theory" ( Gagnon v Village of Cooperstown, N.Y. , 189 AD3d 1724, 1725 [2020] [citations omitted]; see He v Apple, Inc. , 189 AD3d 1984[*2], 1984-1985 [2020]).

CPLR 3211(a)(7) permits dismissal when the complaint’s allegations, taken together, fail to state a legally cognizable cause of action.

2330 Ocean Assoc. LLC v. Haroun · filed 2021-07-08(a)(7)

the moving moving defendant defendant must establish establish that the the factual factual allegation allegationss in the complaint complaint,, when taken taken together, together, fail to to state state aa cause cause of of action action cognizabl cognizablee at law.

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 any cognizable legal theory.

Bumbolo v. Faxton St. Luke's Healthcare · filed 2021-07-16(a)(7)

"On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), '[w]e 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' " ( Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141 [2017], quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(7) requires courts to construe the complaint liberally, accept its alleged facts as true, give the plaintiff every favorable inference, and decide whether those facts fit a cognizable legal theory.

Steven B. v. Westchester Day Sch. · filed 2021-07-21(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), we afford the pleading a liberal construction, accept all facts as alleged in 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 id. § 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; 260 Mamaroneck Ave., LLC v Guaraglia , 172 AD3d 661, 662).

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.

Michael R. v. Westchester Day Sch. · filed 2021-07-21(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), we afford the pleading a liberal construction, accept all facts as alleged in 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 id. § 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; 260 Mamaroneck Ave., LLC v Guaraglia , 172 AD3d 661, 662).

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, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Lawrence K. v. Westchester Day Sch. · filed 2021-07-21(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), we afford the pleading a liberal construction, accept all facts as alleged in 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 id. § 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; 260 Mamaroneck Ave., LLC v Guaraglia , 172 AD3d 661, 662).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s factual allegations as true.

Trenholm-Owens v. City of Yonkers · filed 2021-08-04(a)(7)

The Supreme Court properly granted that branch of the City's motion which was pursuant to CPLR 3211(a)(7) to dismiss the negligence cause of action. Accepting all facts as alleged in the complaint to be true ( see Leon v Martinez , 84 NY2d 83, 87-88; Watts v City of New York , 186 AD3d 1577, 1578), the City was entitled to governmental immunity.

On a CPLR 3211(a)(7) motion, the court assumes the complaint’s factual allegations are true.

Lewis v. Pierce Bainbridge Beck Price Hecht LLP · filed 2021-06-17(a)(7)

While counsel's communications and statements surrounding the withdrawal of the action filed in New York, which we assume to be true on a CPLR 3211 (a)(7) motion, and defendants' subsequent reliance on said withdrawal in a California action, are troubling, the complaint fails to allege damages proximately caused by the alleged deceit ( see Doscher v Mannatt, Phelps & Phillips, LLP , 148 AD3d 523, 524 [1st Dept 2017]).

On a CPLR 3211(a) motion, the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and assesses whether the claim is sufficiently alleged.

Amos Fin., LLC v. Noya 23, LLC · filed 2021-07-07(a)

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleged that the conveyance made by Adebowale to Noya was made without fair consideration, at a time when a monetary judgment in a prior action was entered against Adebowale, and that the judgment remained unsatisfied ( see William J. Jenack Estate Appraisers Auctioneers, Inc. v Rabizadeh , 131 AD3d 960, 962).

Section 3211(a)(7) permits dismissal when the pleading fails to state a cause of action, but evidentiary materials warrant dismissal only when they conclusively establish that the plaintiff has no cause of action.

Francisco v. Kiara Foods, Inc. · filed 2021-08-11(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" ( Sokol v Leader , 74 AD3d 1180, 1180-1181).

Under CPLR 3211(a)(7), the question is whether the pleading states a cause of action, with its alleged facts accepted as true and favorable inferences drawn for the plaintiff.

Westchester County Corr. Officers Benevolent Assn., Inc. v. County of Westchester · filed 2021-08-18(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; see Guggenheimer v Ginzburg , 43 NY2d 268, 275).

CPLR 3211(a)(7) tests whether the facts alleged in a complaint state a cause of action, accepting those facts as true and giving the plaintiff every favorable inference.

Caldara v. County of Westchester · filed 2021-08-18(a)(7)

"In considering such a motion, 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 at 1181 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88). ... Therefore, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

On a motion to dismiss a counterclaim under CPLR 3211(a)(7), the court accepts the alleged facts and opposing submissions as true, gives the pleading party every favorable inference, and asks whether the allegations fit a cognizable legal theory.

Wells Fargo Bank, N.A. v. Mitselmakher · filed 2021-08-25(a)(7)

On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), the court "must accept [the] facts as alleged . . . and submissions in opposition [as true], accord [the pleading party] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88; KST2 Props., LLC v Pretee Constr. Co., Inc. , 192 AD3d 785).

Section 3211(a)(7) permits dismissal of a fraud claim when its allegations are conclusory and fail to state a cause of action.

Mesivta & Yeshiva Gedolah of Manhattan Beach v. VNB N.Y., LLC · filed 2021-08-25(a)(7)

Here, the plaintiff's allegations in support of the causes of action alleging fraud consisted of conclusory assertions, and thus, were insufficient to state a cause of action to recover damages for fraud ( see Kastin v GEICO Gen. Ins. Co. , 190 AD3d at 712; New York Tile Wholesale Corp. v Thomas Fatato Realty Corp. , 153 AD3d at 1354). Accordingly, the court properly granted those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the seventh and eighth causes of action.

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

Dreamco Dev. Corp. v. Empire State Dev. Corp. · filed 2021-08-26(a)(7)

We agree with defendant that Supreme Court should have granted that part of her motion seeking to dismiss the fraud cause of action against her on the ground that it failed to state a cause of action ( see CPLR 3211 [a] [7]).

On a motion to dismiss under CPLR 3211(a)(7), the complaint is construed liberally, its factual allegations are accepted as true, and the nonmoving party receives every favorable inference.

298 Humboldt, LLC v. Torres · filed 2021-09-01(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" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275; see Leon v Martinez , 84 NY2d 83, 87-88; Sokol v Leader , 74 AD3d 1180, 1180-1181). 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 at 87; Sokol v Leader , 74 AD3d at 1181).

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

Avery v. WJM Dev. Corp. · filed 2021-09-15(a)(7)

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, a 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).

On a motion to dismiss a counterclaim under CPLR 3211(a)(7), the court accepts the alleged facts as true, gives the pleading party favorable inferences, and asks whether those facts fit a cognizable legal theory.

Maspeth Fed. Sav. & Loan Assn. v. Elizer · filed 2021-09-22(a)(7)

On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), the court "must accept as true the facts as alleged in the [pleading] and submissions in opposition to the motion, accord [the pleading party] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63 [internal quotation marks omitted]).

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

Roe v. Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church · filed 2021-10-06(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), we afford the pleading a liberal construction, accept all facts as alleged in 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 CPLR 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; 260 Mamaroneck Ave., LLC v Guaraglia , 172 AD3d 661, 662).

Under CPLR 3211(a)(7), courts liberally construe counterclaim allegations when deciding whether they state a cause of action.

HSBC Bank USA, N.A. v. Lien Thi Ngo · filed 2021-09-01(a)(7)

However, the Supreme Court erred in granting that branch of the plaintiff's cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the counterclaim to recover damages for violation of General Business Law § 349. ... Those allegations, liberally construed ( see Leon v Martinez , 84 NY2d 83, 87-88), sufficiently pleaded deceptive conduct that was consumer-oriented, resulting in damages ( see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank , 85 NY2d 20, 25-26; Popular Fin. Servs., LLC v Williams , 50 AD3d 660, 661).

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

Sassi v. Mobile Life Support Services · filed 2021-10-12(a)(7)

Applying our liberal pleading standard for a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), and giving plaintiff the benefit of every favorable inference, we conclude that the courts below erred in concluding the complaint failed to state a cause of action.

CPLR 3211(a)(7) permits dismissal of a family offense petition without a hearing when its factual allegations would not establish a qualifying family offense.

Matter of Silverman v. Leibowitz · filed 2021-10-20(a)(7)

"A family offense petition may be dismissed without a hearing where the petition fails to set forth factual allegations which, if prove[n], would establish that the respondent has committed a qualifying family offense" ( Matter of Cole v Benjamin , 192 AD3d 889, 889; see Matter of Brown-Winfield v Bailey , 143 AD3d 707, 708). ... Accordingly, the Family Court properly, in effect, granted that branch of the mother's motion which was pursuant to CPLR 3211(a)(7) to dismiss the petition ( see Matter of Lashlee v Lashlee , 161 AD3d 865, 866; Matter of Graham v Rawley , 147 AD3d at 1054).

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 favorable inference.

Davies v. S.A. Dunn & Co., LLC · filed 2021-10-21(a)(7)

When assessing a motion to dismiss for failure to state a cause of action ( see CPLR 3211 [a] [7]), this Court "affords the complaint a liberal construction, accepts the facts alleged as true, accords the plaintiff[s] the benefit of every favorable inference and determines only whether the alleged facts fit within any cognizable legal theory" ( Leonard v Cummins , 196 AD3d 886, 888 [2021] [internal quotation marks, brackets and citations omitted]; see Doe v Bloomberg, L.P. , 36 NY3d 450, 454 [2021]).

On a CPLR 3211(a)(7) motion to dismiss a family offense petition, the court must liberally construe the allegations and give the petitioner every favorable inference.

Matter of Cunningham v. Cunningham · filed 2021-11-03(a)(7)

Here, liberally construing the allegations of the petition and giving it the benefit of every possible favorable inference, the petition alleged acts which, if committed by the father, would constitute the family offense of harassment in the second degree ( see Family Ct Act § 812[1]; Penal Law § 240.26). Accordingly, the Family Court should have denied that branch of the father's motion which was pursuant to CPLR 3211(a)(7) to dismiss that branch of the petition which alleged that he committed the family offense of harassment in the second degree.

On a motion to dismiss under CPLR 3211(a)(7), the court must accept the complaint’s allegations as true, give the plaintiff every favorable inference, and ask whether the allegations fit a cognizable legal theory.

East Ramapo Cent. Sch. Dist. v. New York Schs. Ins. Reciprocal · filed 2021-11-17(a)(7)

In determining the defendant's motion to dismiss, the court was required to accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged by the plaintiff fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d at 88; JDI Display Am., Inc. v Jaco Elecs., Inc. , 188 AD3d at 845; Palero Food Corp. v Zucker , 186 AD3d at 495).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action when, even accepting the allegations as true, the complaint offers only conclusory allegations of causation.

Silverstein v. Pillersdorf · filed 2021-11-18(a)(7)

Plaintiff's legal malpractice complaint was properly dismissed in accordance with CPLR 3211(a)(7) for failure to state a cause of action. Even accepting plaintiff's allegations as true, the complaint contains no nonconclusory allegations suggesting that any negligence by defendants in their handling of the medical malpractice trial was the "but for" cause of plaintiff to sustain actual and ascertainable damages ( see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer , 8 NY3d 438, 442 [2007]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint and gives the plaintiff favorable inferences, but dismissal is warranted when the complaint lacks facts supporting an element of the claim.

A.M.P. v. Benjamin · filed 2021-11-24(a)(7)

We first address defendants' contention that plaintiff's third and fourth causes of action, which allege violations of Civil Rights Law § 79-n, should have been dismissed pursuant to CPLR 3211 (a) (7) for failure to state a claim. "When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must 'give the complaint a liberal construction, accept the allegations as true and provide [the] plaintiff[] with the benefit of every favorable inference'" ( Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc. , 30 NY3d 572, 582 [2017], quoting Roni LLC v Arfa , 18 NY3d 846, 848 [2011]). "Such favorable treatment, however, 'is not limitless'" ( Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC , 155 AD3d 1218, 1219 [2017], affd 31 NY3d 1090 [2018], quoting Tenney v Hodgson Russ, LLP , 97 AD3d 1089, 1090 [2012]), and dismissal of the complaint will be warranted where "the plaintiff fails to assert facts in support of an element of the claim" ( Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 142 [2017]).

On a failure-to-state-a-cause-of-action challenge, the court considers evidentiary material beyond the pleadings to determine whether the plaintiff actually has a cause of action.

Grand Lodge of the Ind. Order of Odd Fellows of the State of N.Y. v. Rutigliano · filed 2021-11-24(a)(7)

To the extent that certain branches of the defendants' motion were premised on a failure to state a cause of action, this simply required the court to consider evidentiary material in addition to the pleadings in order to determine whether the plaintiff actually has a cause of action ( see Wedgewood Care Ctr., Inc. v Kravitz , 198 AD3d 124; Seidler v Knopf , 186 AD3d 889, 890).

Section 3211(a)(7) permits dismissal only when the defendant establishes that a material fact alleged by the plaintiff is not a fact and no significant dispute exists about it.

Houtenbos v. Fordune Assn., Inc. · filed 2021-12-01(a)(7)

Here, dismissal pursuant to CPLR 3211(a)(7) was warranted only if Fordune established that a material fact as claimed by the plaintiff was not a fact at all, and that no significant dispute existed regarding it ( see Kalaj v 21 Fountain Place, LLC , 169 AD3d 657, 658).

A claim for necessaries survives a motion to dismiss under CPLR 3211(a)(7) when the plaintiff alleges its requisite elements.

Cohen Goldstein, LLP v. Schlachet · filed 2021-12-02(a)(7)

The fourth cause of action (for necessaries), however, should not have been dismissed. ... Plaintiff alleged the requisite elements ( see id.).

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.

Rudovic v. Law Off. of Timothy A. Green · filed 2021-12-08(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; see Katsoris v Bodnar & Milone, LLP , 186 AD3d 1504, 1506).

When a court considers evidentiary material on a motion under CPLR 3211(a)(7), it asks whether the plaintiff has a cause of action, not merely whether the complaint states one.

Mistretta v. Newsday Media Group · filed 2021-12-08(a)(7)

When evidentiary material is considered on a motion to dismiss pursuant to 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'" ( Greenberg v Spitzer , 155 AD3d 27, 44, quoting Guggenheimer v Ginzburg , 43 NY2d 268, 275).

Section 3211(a)(7) does not warrant dismissal when the allegations in the complaint and bill of particulars sufficiently support the causes of action.

Seem v. Premier Camp Co., LLC · filed 2021-12-15(a)(7)

The Supreme Court erred in granting that branch of the Premier defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the Labor Law § 200 and common-law negligence causes of action insofar as asserted against them. Contrary to the determination of the court, the plaintiff's allegations in the complaint and bill of particulars were sufficient to support these causes of action ( see Rodriguez v HY 38 Owner, LLC , 192 AD3d 839; Ortega v Puccia , 57 AD3d at 61).

On a motion under CPLR 3211(a)(7), the court liberally construes the complaint, accepts its alleged facts as true, and asks whether they fit a cognizable legal theory.

Klostermeier v. City of Port Jervis · filed 2021-12-15(a)(7)

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction and 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'" ( Berkovits v Berkovits , 190 AD3d 911, 914-915, quoting Leon v Martinez , 84 NY2d 83, 87-88; see [*2]Katsoris v Bodnar & Milone, LLP , 186 AD3d 1504, 1505).

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.

Jakes-Johnson v. Gottlieb · filed 2021-12-23(a)(7)

Accepting the facts as alleged in the amended complaint as true, as we must, and affording plaintiffs the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), we conclude that plaintiffs sufficiently alleged a breach of the implied covenant of good faith and fair dealing.

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

Fuentes v. LOMTO Fed. Credit Union · filed 2021-12-29(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, "the court must accept as true the facts as alleged in the pleading and submissions in opposition to the motion, accord the pleading party the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Maspeth Fed. Sav. & Loan Assn. v Elizer , 197 AD3d at 1254 [alterations and internal quotation marks omitted]).

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

Villnave Constr. Servs., Inc. v. Crossgates Mall Gen. Co. Newco, LLC · filed 2022-01-13(a)(7)

With respect to a motion pursuant to CPLR 3211 (a) (7), the relevant inquiry is "whether the facts as alleged fit within any cognizable legal theory" ( Meyer v Zucker , 160 AD3d 1243, 1245 [2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 905 [2018]; see Doller v Prescott , 167 AD3d at 1299).

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 favorable inference.

Amsterdam Tobacco Co., Inc. v. Harold Levinson Assoc., LLC · filed 2022-01-26(a)(7)

In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts alleged in the complaint to be true, and accord the plaintiff the benefit of every possible favorable inference ( see CPLR 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; Leon v Martinez , 84 NY2d 83, 87).

Under CPLR 3211(a)(7), a complaint should not be dismissed when the evidence leaves a significant factual dispute about whether the plaintiff has a cause of action.

Chvetsova v. Family Smile Dental · filed 2022-02-02(a)(7)

The individual defendants thus failed to establish that no significant factual dispute exists with respect to the breach of contract cause of action insofar as asserted against Irlin ( see Derby v Bitan , 89 AD3d at 890-891). Accordingly, the Supreme Court improperly granted that branch of the individual defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the breach of contract cause of action insofar as asserted against Irlin.

On a motion to dismiss under section 3211(a)(7), the court accepts the pleaded facts as true and does not decide whether the plaintiff can ultimately prove them.

Matter of Scarsdale Comm. for Fair Assessments v. Albanese · filed 2022-02-16(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading 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 ( see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63-64).

Section 3211(a)(7) requires the court to construe the complaint liberally, accept its alleged facts as true, give the plaintiff every favorable inference, and ask whether those facts fit a cognizable legal theory.

Collyer v. LaVigne · filed 2022-02-17(a)(7)

"In considering a motion . . . based upon failure to state a cause of action, the complaint is liberally construed, the facts as alleged are accepted as true and the plaintiff is accorded the benefit of every favorable inference. [This Court] determine[s] only whether the facts as alleged fit within any cognizable legal theory to ascertain whether the plaintiff has a cause of action" ( Murray Bresky Consultants, Ltd v New York Compensation Manager's Inc. , 106 AD3d 1255, 1258 [2013] [internal quotation marks and citations omitted]; see CPLR 3211 [a] [7]).

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

Bay Ridge Lodge 758, Free & Accepted Masons v. Grand Lodge of Free & Accepted Masons of the State of N.Y. · filed 2022-02-23(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction ( see id. § 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint's allegations as true, draws favorable inferences, and asks whether they state a cognizable claim; the plaintiff need not produce evidence supporting those allegations.

Ripa v. Petrosyants · filed 2022-03-02(a)(7)

Here, the Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff's failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement ( see Hall v Hobbick , 192 AD3d at 778), and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint ( see Doe v Ascend Charter Schs. , 181 AD3d 648, 650; Stuart Realty Co. v Rye Country Store , 296 AD2d 455, 456).

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

Blank v. Petrosyants · filed 2022-03-02(a)(7)

In considering 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" ( Mawere v Landau , 130 AD3d at 988 [internal quotation marks omitted]; see Hall v Hobbick , 192 AD3d at 777-778).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the petition’s allegations as true and gives the petitioner favorable inferences, but may dismiss if those allegations still fail to state a cause of action.

Matter of Gerety v. Gerety · filed 2022-03-09(a)(7)

Thus, accepting the facts as alleged in the amended petition as true, and according the father the benefit of every possible favorable inference, the allegations in his amended petition are insufficient to state a substantial change in circumstances that would warrant a downward modification of his child support obligation ( see Matter of Rosenberg v Rosenberg , 145 AD3d at 1015-1016; Matter of Rosenthal v Weiss , 129 AD3d 738; see generally Matter of Oelsner v Heppler , 181 AD3d at 917).

Under CPLR 3211(a)(7), conclusory allegations of but-for causation do not state a legal malpractice claim.

Menkes v. Solomon & Cramer LLP · filed 2022-03-15(a)(7)

Plaintiff's legal malpractice claim was correctly dismissed in accordance with CPLR 3211(a)(7) for failure to state a cause of action. Even accepting plaintiff's allegations as true, the complaint contains only conclusory allegations that any negligence by defendants in not raising an affirmative claim for interest in a fee dispute between plaintiff and two attorneys was the "but for" cause of plaintiff's alleged damages ( AmBase Corp. v Davis Polk & Wardwell , 8 NY3d 428, 434 [2007]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP , 26 NY3d 40, 50 [2015]).

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

Ayers v. Bloomberg, L.P. · filed 2022-03-16(a)(7)

"When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference" ( Cortlandt St. Recovery Corp. v Bonderman , 31 NY3d 30, 38 [internal quotation marks omitted]; see Doe v Bloomberg L.P. , 36 NY3d 450, 454).

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, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Ward v. Klein · filed 2022-03-30(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 all facts as alleged in the complaint to be 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 Leon v Martinez , 84 NY2d 83, 87).

On a motion to dismiss for failure to state a cause of action, courts treat the complaint’s allegations as true.

Greenberg v. Montefiore New Rochelle Hosp. · filed 2022-03-31(a)(7)

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), courts treat the allegations in the complaint as true ( Leon v Martinez , 84 NY2d 83, 87 [1994]).

CPLR 3211(a)(1) and (7) permit dismissal when documentary evidence conclusively refutes the complaint’s factual allegations and the plaintiff has no cause of action.

Constant v. Public Adm'r of Queens County · filed 2022-04-06(a)(1), (a)(7)

Here, the documentary evidence submitted by the defendant, which included the letters of administration issued on May 23, 2018, more than four months after the incident, utterly refuted the plaintiff's allegations that the defendant owned, controlled, and managed the premises at the time of the incident, thereby conclusively establishing a defense as a matter of law ( see Karpovich v City of New York , 162 AD3d 996, 998). Thus, the plaintiff failed to state a cause of action sounding in negligence. Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

Section 3211(a)(7) permits dismissal of a legal malpractice complaint that fails to plead proximate cause, even when its allegations receive every favorable inference.

Ozimek v. DiJoseph · filed 2022-04-07(a)(7)

The motion court properly dismissed the complaint for failure to state a cause of action. According plaintiffs every possible favorable inference, the allegations in the complaint do not show a meritorious claim against the radiologist and thus, do not plead proximate cause sufficient to support a cause of action for legal malpractice ( see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer , 8 NY3d 438, 442 [2007]; Leon v Martinez , 84 NY2d 83, 87-88 [1994]; CPLR 3211[a][7]).

Under CPLR 3211(a)(7), a complaint fails to state a cause of action when its core factual allegations and the defendant’s purported involvement rest on speculation, even after liberal construction and favorable inferences.

O'Neill v. Wilder · filed 2022-04-13(a)(7)

Here, affording the complaint a liberal construction, accepting the facts alleged therein to be true, and granting the plaintiff the benefit of every possible favorable inference, we conclude that it fails to state a cause of action, as the core factual allegations and the purported involvement of the defendant are based on mere speculation.

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

Gross v. Capital One, N.A. · filed 2022-04-13(a)(7)

Nevertheless, the Supreme Court properly determined that the complaint should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

Under CPLR 3211(a)(7), a complaint alleging that a county breached its own duty to maintain a jail need not be dismissed merely because the county cannot be held vicariously liable for the sheriff.

Aviles v. County of Orange · filed 2022-04-13(a)(7)

Contrary to the determination of the Supreme Court and the contention of the defendants, the complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County's breach of that duty caused the plaintiff to sustain personal injuries. ... Accordingly, the Supreme Court should not have directed dismissal of the complaint insofar as asserted against the County.

Section 3211(a)(7) permits dismissal when a complaint relies on bare legal conclusions or lacks facts supporting an element of a claim.

Horowitz v. Fallon · filed 2022-04-14(a)(7)

This favorable treatment is not endless, however, and where the allegations in the complaint consist of bare legal conclusions, "fail[] to assert facts in support of an element of the claim, or . . . the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery," dismissal is warranted under CPLR 3211 (a) (7) ( Connaughton v Chipotle Mexican Grill, [*2]Inc. , 29 NY3d 137, 142 [2017]; see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d 169, 175 [2021]; A.M.P. v Benjamin , 201 AD3d 50, 54 [2021]).

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

Dhar v. City of New York · filed 2022-04-27(a)

Here, affording the complaint a liberal construction, accepting the facts as alleged to be true, and according the plaintiff the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87), the complaint fails to state a cause of action alleging constructive discharge, as the allegations are either vague and conclusory ( see Murphy v Department of Educ. of City of N.Y. , 155 AD3d 637, 640), or pertain to events that occurred after the plaintiff resigned.

On a motion to dismiss for failure to state a cause of action, the court accepts the petition’s alleged facts as true, draws favorable inferences, and asks whether those facts fit a cognizable claim.

Matter of Tammy TT. v. Charles TT. · filed 2022-04-28(a)(7)

When analyzing a motion under CPLR 3211 (a) (7), "'[w]e accept the facts as alleged in the [petition] as true, accord [the petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable theory'" ( Matter of Pamela N. v Neil N. , 93 AD3d at 1108, quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Matter of Walter Q. v Stephanie R. , 201 AD3d 1142, 1144 [2022]).

Section 3211(a)(7) requires a court assessing whether a complaint states a cause of action to accept its alleged facts as true and give the plaintiff every favorable inference.

Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C. · filed 2022-05-04(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 accept the facts alleged in the pleading 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 at 326; Leon v Martinez , 84 NY2d 83, 87).

On a motion to dismiss for failure to state a cause of action under § 3211(a)(7), the pleading receives a liberal construction.

Marinelli v. New York Methodist Hosp. · filed 2022-05-04(a)(7)

On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, "the pleading is to be afforded a liberal construction" ( Leon v Martinez , 84 NY2d 83, 87, citing CPLR 3026).

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.

Davydov v. Youssefi · filed 2022-05-18(a)(7)

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, we afford the pleading a liberal construction, accept all facts as alleged in 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 Belling v City of Long Beach , 168 AD3d 900, 901; Mendelovitz v Cohen , 37 AD3d 670, 671).

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action and requires the court to assess whether the complaint adequately states a claim.

Pope Invs. II LLC v. Belmont Partners, LLC · filed 2022-05-19(a)(7)

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about October 6, 2014, which denied defendants Belmont Partners, LLC and Joseph Muese's motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint as against them, unanimously affirmed, with costs. The motion court correctly determined that the amended complaint adequately stated claims for fraudulent inducement by alleging, among other things, that but for defendants' misrepresentations that the nonparties who embezzled plaintiffs' investment were trustworthy and that the transactions were properly structured, plaintiffs would not have agreed to complete the transactions.

Section 3211(a)(7) is the provision under which the second amended complaint was dismissed.

Kurland & Assoc., P.C. v. Glassdoor, Inc. · filed 2022-05-19(a)(7)

Accordingly, the dismissal should be re-designated as pursuant to CPLR 3211(a)(7) (and not CPLR 3211[g]), and the denial of defendants' motion for costs and fees (pursuant to the anti-SLAPP law, Civil Rights Law § 70-a[1][a]) is affirmed.

A CPLR 3211(a)(7) motion cannot resolve a factually laden defense on the face of the pleadings, and affidavits and other materials offered to support that factual position are unavailing.

Le Bihan v. 27 Wash. Sq. N. Owner LLC · filed 2022-05-26(a)(7)

Here respondent's defense that it did not and could not have known about the overcharge does not warrant dismissal of the complaint on a pre-answer motion. ... Respondent's defense that it neither knew nor could have known about the overcharge is a factually laden inquiry. It is not a conclusion that can be reached on the face of the pleadings. Respondent's attempt to support its factual position with affidavits and other materials on its CPLR 3211(a)(7) motion is unavailing ( Rovello v Orofino Realty Co ., 40 NY2d 633, 635 [1976]; Ackerman v 305 E. 40th Owners Corp. , 189 AD2d 665 [1st Dept 1993]).

Section 3211(a)(7) allows dismissal when the pleading fails to state a claim.

Schlusselberg v. New York Cent. Mut. Fire Ins. Co. · filed 2022-06-01(a)(7)

Since the plaintiff failed to state a claim for punitive damages, the Supreme Court should have granted the defendant's motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss that demand.

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

Davis v. 574 Lafa Corp. · filed 2022-06-01(a)(7)

When assessing 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 pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see CPLR 3026; Leon v Martinez , 84 NY2d 83, 87-88; Rovello v Orofino Realty Co. , 40 NY2d 633, 634).

Section 3211(a)(7) requires liberal construction of the pleading, acceptance of alleged facts as true, and dismissal when the pleading fails to state a cause of action.

Sullivan v. New York State Joint Commn. on Pub. Ethics · filed 2022-06-02(a)(7)

It is well settled that "[i]n a civil action, a motion to dismiss pursuant to CPLR 3211 (a) (7) requires the court to give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference, and to dismiss the pleading if, upon that analysis, it fails to state a cause of action" ( Dodson v Town Bd. of the Town of Rotterdam , 182 AD3d 109, 112 [2020] [internal quotation marks and citations omitted]).

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

Saltiel v. FM Home Loans, LLC · filed 2022-06-08(a)(7)

However, that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action in the amended complaint, alleging breach of the implied covenant of good faith and fair dealing, should have been granted, as the first cause of action failed to state a cause of action ( see Farro v Schochet , 190 AD3d 689, 693; Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc. , 153 AD3d 768, 770; Gutierrez v Government Empls. Ins. Co. , 136 AD3d 975, 976).

CPLR 3211(a)(7) tests whether the pleading states a cause of action by accepting its alleged facts as true and giving the plaintiff every favorable inference.

Oluwo v. Sutton · filed 2022-06-08(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.

Section 3211(a)(7) permits dismissal when a petition fails to allege facts sufficient to state a legally cognizable cause of action.

Matter of Hene v. Egan · filed 2022-06-08(a)(7)

On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition for failure to state a cause of action, "the sole criterion is whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( Matter of Kunik v New York City Dept. of Educ. , 142 AD3d 616, 617 [internal quotation marks omitted]; see Matter of MVM Constr., LLC v Westchester County , 112 AD3d 635, 636).

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

Incorporated Vil. of Freeport v. Freeport Plaza W., LLC · filed 2022-06-08(a)(7)

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion pursuant to CPLR 3211(a)(7) to dismiss the defendant's counterclaim is granted.

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

A. R. v. City of New York · filed 2022-06-08(a)(7)

Contrary to the plaintiffs' contentions, the Supreme Court properly granted those branches of the motion of the defendants City of New York, New York City Department of Education, and George Gonzalez (hereinafter collectively the defendants) which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and fourth causes of action insofar as asserted against them for failure to state a cause of action.

Section 3211(a)(7) allows dismissal for failure to state a cause of action and requires the court to accept pleaded facts as true, give plaintiffs every favorable inference, and decide only whether those facts fit a cognizable legal theory.

U.S. Bank N.A. v. Kahn Prop. Owner, LLC · filed 2022-06-15(a)(7)

In assessing a motion to dismiss a complaint 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 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).

Section 3211(a)(7) requires a court to accept pleaded facts as true, give the plaintiff favorable inferences, and decide whether the facts fit any cognizable legal theory.

Kaufman v. Kaufman · filed 2022-06-15(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading 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 ( see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63-64).

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

Favourite Ltd. v. Cico · filed 2022-06-21(a)(7)

Defendants failed to allege facts to show any basis for a cognizable breach of contract or non-duplicative declaratory judgment claim against the Company or plaintiff members based on the business operations of the Company or plaintiff members' efforts to pursue this litigation.

Section 3211(a)(7) requires courts assessing a complaint's adequacy to construe pleadings liberally, accept allegations as true, and give plaintiffs every favorable inference.

Solis v. Aguilar · filed 2022-06-01(a)(7)

When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion [*2]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" ( Leon v Martinez , 84 NY2d 83, 87; see CPLR 3026; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. , 5 NY3d 582, 591).

On a motion under section 3211(a)(7), the court liberally construes the pleading, accepts its factual allegations as true, gives the nonmoving party every favorable inference, and asks whether the facts fit a cognizable legal theory.

Naegele v. Fox · filed 2022-06-03(a)(7)

"On a motion to dismiss . . . pursuant to CPLR 3211, we must liberally construe the pleading and 'accept the facts as alleged in the [pleading] as true, accord [the nonmoving party] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' " ( Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d 169, 175 [2021], rearg denied 37 NY3d 1020 [2021], quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141 [2017]).

Section 3211(a)(7) permits dismissal when the alleged facts and reasonable inferences do not support an enforceable right of recovery.

Nassau Operating Co., LLC v. DeSimone · filed 2022-06-22(a)(7)

Under the circumstances and on this record, the plaintiff's "factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d at 142). Accordingly, the Supreme Court should have granted that branch of the granddaughter's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

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 those allegations fit a cognizable legal theory.

50 Clarkson Partners, LLC v. Old Republic Natl. Tit. Ins. Co. · filed 2022-06-29(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in 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 Leon v Martinez , 84 NY2d 83, 87-88).

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

Li v. Shih · filed 2022-07-06(a)(7)

"'On a motion pursuant to CPLR 3211(a)(7) to dismiss 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" ( Murphy v Department of Educ. of City of N.Y. , 155 AD3d 637, 638, quoting Phillips v Taco Bell Corp. , 152 AD3d 806, 807).

On a motion to dismiss under CPLR 3211(a)(7), courts liberally construe the pleadings, accept the complaint’s allegations as true, and give the plaintiff every favorable inference.

Druger v. Syracuse Univ. · filed 2022-07-08(a)(7)

Contrary to SU's further contentions, we conclude that the amended complaint states causes of action against it for negligence and negligent hiring, retention, training and supervision ( see generally CPLR 3211 [a] [7]). On a motion to dismiss pursuant to CPLR 3211 (a) (7), we "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]).

On a motion to dismiss under CPLR 3211(a)(7), the petition’s allegations are accepted as true and the petitioner receives every favorable inference.

Matter of Jean-Baptiste v. Jean-Baptiste · filed 2022-07-20(a)(7)

Thus, accepting the facts as alleged in the father's petition as true and according him the benefit of every possible favorable inference, and considering the father's evidence submitted in opposition to the mother's motion, he failed to sufficiently allege a substantial change in circumstances that would warrant a downward modification of his child support obligation ( see Matter of Gerety v Gerety , 203 AD3d at 829-830).

Section 3211(a)(7) requires a court deciding whether a complaint states a cause of action to accept its alleged facts as true, draw every favorable inference for the plaintiff, and ask whether those facts fit a cognizable legal theory.

Maruca v. DiGesu · filed 2022-07-27(a)(7)

In deciding 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 as alleged in the complaint to be 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 Leon v Martinez , 84 NY2d 83, 87-88).

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

Weinstein v. Levitin · filed 2022-08-03(a)(7)

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" ( Gruber v Donaldsons, Inc. , 201 AD3d 887, 888 [internal quotation marks omitted]; see Gorbatov v Tsirelman , 155 AD3d 836, 837).

On a motion to dismiss under CPLR 3211(a)(7), the court must construe the pleading liberally, accept its factual allegations as true, and give the plaintiff every possible favorable inference.

Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs. · filed 2022-08-03(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts alleged in the complaint to be true, and accord the plaintiff the benefit of every possible favorable inference ( see id. § 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; Leon v Martinez , 84 NY2d 83, 87).

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

Shapiro v. Syracuse Univ. · filed 2022-08-04(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), we "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]).

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

Fika Midwifery PLLC v. Independent Health Assn., Inc. · filed 2022-08-04(a)(7)

"In assessing 'a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . We 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]). 'Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss' ( EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005])" ( Pottorff v Centra Fin. Group , Inc ., 192 AD3d 1552, 1553 [4th Dept 2021]; see J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334 [2013]).

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.

Silverman v. Eccleston Law, LLC · filed 2022-08-17(a)(7)

Here, accepting all facts as alleged in the amended complaint to be true and according the plaintiff the benefit of every favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88), the amended complaint failed to state a legal malpractice cause of action.

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.

Boyle v. North Salem Cent. Sch. Dist. · filed 2022-08-24(a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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; see Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

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.

Neurological Surgery, P.C. v. MLMIC Ins. Co. · filed 2022-09-21(a)(7)

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, a 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; see Mandarin Trading Ltd. v Wildenstein , 16 NY3d 173, 178).

Section 3211(a)(7) permits a movant to submit affidavits and evidence that conclusively show the plaintiff has no cause of action.

Stuber v. Stuber · filed 2022-10-07(a)(7)

A movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action ( see Liberty Affordable Hous., Inc. v Maple Ct. Apts. , 125 AD3d 85, 88-90 [4th Dept 2015]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the pleading.

York v. Frank · filed 2022-10-12(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, the pleading is to be afforded a liberal construction" ( Farber v Breslin , 47 AD3d 873, 876; see Bernhardt v Schneider , 190 AD3d 919, 920).

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

Vice, Inc. v. Stapp · filed 2022-10-12(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court will 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" ( Tsinias Enters. Ltd. v Taza Grocery, Inc. , 172 AD3d 1271, 1272 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88).

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.

Board of Trustees v. Allure Metal Works, Inc. · filed 2022-10-12(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; see Leon v Martinez , 84 NY2d 83, 87; Smith v Meridian Tech., Inc. , 52 AD3d 685, 686).

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

Leistner v. Vanini · filed 2022-09-30(a)(7)

Initially, we note that, on a motion to dismiss pursuant to CPLR 3211 (a) (7), we "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]).

CPLR 3211(b) does not allow a plaintiff to strike an affirmative defense that the complaint fails to state a cause of action.

Ochoa v. Townsend · filed 2022-10-19(b)

However, the Supreme Court should have denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 3211(b) to dismiss the defendants' first affirmative defense, alleging that the complaint fails to state a cause of action. "[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" ( Butler v Catinella , 58 AD3d 145, 150; see Jacob Marion, LLC v Jones , 168 AD3d 1043, 1044; Mazzei v Kyriacou , 98 AD3d at 1089).

On a pre-answer motion to dismiss under § 3211(a)(7), a plaintiff need not submit proof before discovery to support a complaint that cures a pleading omission.

Mohammed v. New York State Professional Fire Fighters Assn., Inc. · filed 2022-10-20(a)(7)

Although Supreme Court correctly determined that the proposed amended complaint cured the pleading omission, its attendant conclusion that "[plaintiff's] claim is belied by the documentary evidence" and subsequent dismissal of the action on that basis was error. At this stage of the litigation, where discovery has not yet even commenced, plaintiff has no burden to submit any proof. As such, the documents that she did submit are of no moment, and do not provide a basis upon which to dismiss her action ( see Passeri v Brody, 199 AD3d at 1262-1263; Van Wageningen v City of Ithaca , 168 AD3d 1266, 1267 [3d Dept 2019]; Massey v City of Cohoes , 35 AD3d 996, 996 [3d Dept 2006]).

On a motion to dismiss for failure to state a cause of action, pleadings receive a liberal construction, alleged facts are accepted as true, and the plaintiff receives every possible favorable inference.

Fuller v. Family Servs. of Westchester, Inc. · filed 2022-10-26(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; 106 N. Broadway, LLC v Lawrence , 189 AD3d 733, 736).

Section 3211(a)(7) requires denial of a motion to dismiss when the complaint’s allegations, accepted as true with favorable inferences, state a cause of action.

City of New York v. Land & Bldg. Known as 4802 4th Ave. · filed 2022-10-26(a)(7)

Accordingly, the Supreme Court should have denied City Tobacco House's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

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

Boland v. City of New York · filed 2022-10-26(a)(7)

In considering 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 facts as alleged in 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 Leon v Martinez , 84 NY2d 83, 87-88; Palero Food Corp. v Zucker , 186 AD3d 493, 495).

CPLR 3211(a)(1) and (7) permit dismissal when documentary evidence conclusively establishes a defense and the plaintiff has no cause of action.

Homapour v. Piroozian · filed 2022-11-02(a)(1), (a)(7)

Accordingly, the Supreme Court correctly granted that branch of Piroozian's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, as Piroozian's evidence conclusively established a defense as a matter of law, and demonstrated that Homapour does not have a cause of action for specific performance ( see generally Leon v Martinez , 84 NY2d at 88).

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

Feldman v. Byrne · filed 2022-11-02(a)(7)

In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts alleged in the complaint to be true, and accord the plaintiff the benefit of every possible favorable inference ( see J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; Leon v. Martinez, 84 NY2d 83, 87; Amsterdam Tobacco Co., Inc. v Harold Levinson Assoc., LLC , 201 AD3d 846, 848-849).

On a motion to dismiss for failure to state a claim, the court liberally construes the pleading, accepts its factual allegations as true, gives the plaintiff every favorable inference, and asks whether the alleged facts fit a cognizable legal theory.

F&R Goldfish Corp. v. Furleiter · filed 2022-11-02(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. 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" ( Leon v Martinez , 84 NY2d 83, 87-88 [citation omitted]; see CPLR 3211[a][7]; Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc. , 30 NY3d 572, 582).

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

Cohen v. Cohen · filed 2022-11-02(a)(7)

The Supreme Court properly granted dismissal of the cause of action alleging abuse of process pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Accepting "the facts as alleged in the complaint as true," and according the plaintiff "the benefit of every possible favorable inference" ( Leon v Martinez , 84 NY2d 83, 87), the complaint alleges that the defendant made a report to the police, resulting in the issuance of an order of protection, for the improper purpose of gaining an advantage in the parties' divorce litigation.

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; federal plausibility pleading is not required.

Gutierrez v. Bactolac Pharm., Inc. · filed 2022-11-09(a)(7)

Contrary to the court's determination, the pleading requirements for a cause of action alleging unpaid overtime under the relevant provisions of the New York Labor Law are not identical to those under the federal Fair Labor Standards Act (29 USC § 201 et seq .), as the federal pleading requirement of plausibility in a cause of action such as this is not an element of the analysis under CPLR 3211(a)(7).

Under section 3211(a)(7), a negligence complaint survives dismissal when its alleged facts, accepted as true with favorable inferences, state a cause of action.

Skefalidis v. China Pagoda NY, Inc. · filed 2022-11-16(a)(7)

Here, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88), the amended complaint sufficiently alleged a negligence cause of action against Bio Energy.

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.

Asamblea De Iglesias Christianas, Inc. v. DeVito · filed 2022-11-16(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) to dismiss 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shah v Exxis, Inc. , 138 AD3d 970, 971; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

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.

Novak v. Sisters of the Heart of Mary · filed 2022-11-30(a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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; see Boyle v North Salem Cent. Sch. Dist. , 208 AD3d 744; Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

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

McWhite v. I & I Realty Group, LLC · filed 2022-11-30(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts alleged in the complaint to be true, and accord the plaintiff the benefit of every possible favorable inference ( see CPLR 3026; J.P. Morgan Sec. Inc. v Vigilant Ins. Co. , 21 NY3d 324, 334; Laguerre v Maurice , 192 AD3d 44, 50).

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.

Eskridge v. Diocese of Brooklyn · filed 2022-11-30(a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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; see Boyle v North Salem Cent. Sch. Dist. , 208 AD3d 744; Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

On a motion under CPLR 3211(a)(7), the court liberally construes the pleading, accepts its alleged facts as true, and asks whether those facts fit a cognizable legal theory.

Young v. 101 Old Mamaroneck Rd. Owners Corp. · filed 2022-12-07(a)(7)

"On a motion to dismiss pursuant to CPLR 3211(a)(7), 'the standard is whether the pleading states a cause of action'" ( Houtenbos v Fordune Assn., Inc. , 200 AD3d 662, 663, quoting Sokol v Leader , 74 AD3d 1180, 1180-1181). In considering such a motion, "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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Phillips v Taco Bell Corp. , 152 AD3d 806, 807; see Leon v Martinez , 84 NY2d 83, 87-88; Houtenbos v Fordune Assn., Inc. , 200 AD3d at 663; Sokol v Leader , 74 AD3d at 1181).

Under CPLR 3211(a)(7), a family offense petition may be dismissed without a hearing when, even with a liberal reading and favorable inferences, it alleges no conduct constituting a family offense.

Matter of Riyad v. Abdelmoumen · filed 2022-12-07(a)(7)

The mother moved pursuant to CPLR 3211(a)(4), (5), and (7) to dismiss the petition. ... Here, liberally construing the allegations in the family offense petition and giving the father the benefit of every possible favorable inference, the petition was conclusory and failed to allege conduct by the mother constituting a family offense ( see Family Court Act § 812; Matter of Lashlee v Lashlee , 145 AD3d 723, 724). Accordingly, the Family Court properly dismissed the petition without a hearing.

On a motion to dismiss under CPLR 3211(a)(7), a complaint survives if its factual allegations together state any cognizable cause of action, even if that claim is not separately pleaded.

885 3rd Ave. Realty Owners LLC v. Alden Global Capital LLC · filed 2022-11-29(a)(7)

The fact that the complaint did not assert this quasi-contract claim as a separate cause of action is immaterial, as the sole criterion in reviewing a CPLR 3211 (a) (7) motion to dismiss is whether, from the four corners of the pleading, "factual allegations are discerned which taken together manifest any cause of action cognizable at law" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

A breach-of-contract complaint survives a motion to dismiss when it sufficiently alleges a breach; the court cannot resolve disputed facts against the plaintiff at that stage.

McKeon v. Musallam · filed 2022-12-01(a)(7)

Order, Supreme Court, New York County (Jennifer Schecter, J.), entered September 10, 2021, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, without costs, the complaint reinstated, and the matter remanded for further proceedings consistent herein. ... At this stage, plaintiffs have sufficiently alleged breaches of the Omnibus Agreement.

A CPLR 3211(a)(7) motion to dismiss a defamation claim should be denied when the words, read in their ordinary meaning and context, are susceptible to a defamatory connotation.

Davis v. Brown · filed 2022-12-15(a)(7)

On a CPLR 3211 (a)(7) motion to dismiss, denial is warranted if taking the words used both in their ordinary meaning and in context make them susceptible to a defamatory connotation as occurs in this case ( Davis v Boeheim , 24 NY3d at 272).

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

Angeli v. Barket · filed 2022-12-21(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88).

On a motion to dismiss for failure to state a cause of action, courts accept the complaint’s facts as true and give the plaintiff every favorable inference.

Cruz v. City of New York · filed 2022-12-28(a)(7)

On 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 a 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" ( Leon v Martinez , 84 NY2d 83, 87-88; see Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141).

On a motion to dismiss for failure to state a cause of action, courts construe the complaint liberally, accept its allegations as true, and give plaintiffs every favorable inference without assessing whether they can ultimately prove the allegations.

Arnone v. Burke · filed 2022-12-28(a)(7)

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, "the court must afford the complaint a liberal construction, 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. The plaintiff's ultimate ability to prove those allegations is not relevant" ( SV Vernon 43, LLC v Malik , 138 AD3d 730, 731 [internal quotation marks omitted]; see Hersh v Cohen , 131 AD3d 1117, 1117).

Under CPLR 3211(a)(7), dismissal is unwarranted when allegations read in the plaintiff’s favor support a reasonable inference that the complaint states a cause of action.

Shevlin v. Wonder Works Constr. Corp. · filed 2022-12-29(a)(7)

Dismissal of the complaint under CPLR 3211(a)(7) was not warranted because the complaint stated a whistleblower cause of action under Labor Law § 740(a)(c). ... Those allegations, read in the light most favorable to plaintiff, gave rise to a reasonable inference that section 3307.3.4 applied to defendants, and that it was defendants' practice or policy not to comply with that statute.

On a CPLR 3211(a)(7) motion, the court liberally construes the complaint and gives the plaintiff's allegations every favorable inference.

Lawlor v. Wymbs, Inc. · filed 2023-01-10(a)(7)

Affording the complaint a liberal construction and giving plaintiff's allegations every favorable inference, the allegations that plaintiff was terminated after complaining in June 2020 about his employer's practice of permitting a nonemployee to enter the workplace without wearing a mask or socially distancing support plaintiff's claim that defendant "violated various laws, rules or regulations" targeting COVID-19 safety precautions in the workplace, including Executive Order 202.8 and related executive action ( Webb-Weber v Community Action for Human Servs., Inc. , 23 NY3d 448, 453-454 [2014]).

On a motion to dismiss for failure to state a cause of action, the court may consider the defendant’s evidence, but dismissal requires affidavits that conclusively establish the claimant has no cause of action.

Dominguez v. State of New York · filed 2023-01-16(a)(7)

The court may consider evidentiary material submitted by a defendant in support of such a motion, but "the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party" and dismissal is not warranted unless defendant's affidavits "'establish conclusively that [the nonmoving party] has no cause of action'" ( Sokol , 74 AD3d at 1181-1182, quoting Lawrence v Miller , 11 NY3d 588, 595 [2008]).

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 nonmoving party all favorable inferences.

Rosenshein v. Kushner · filed 2023-01-18(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences ( see Olivieri Constr. Corp. v WN Weaver St., LLC , 144 AD3d 765, 766; Stortini v Pollis , 138 AD3d 977, 978).

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, and gives the plaintiff every favorable inference.

JP Morgan Chase Bank, NA v. Cantwell · filed 2023-01-18(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" ( Elow v Svenningsen , 58 AD3d 674, 674; see Leon v Martinez , 84 NY2d 83, 87-88).

A motion to dismiss that does not identify a subdivision of CPLR 3211(a) may be treated as a challenge to the sufficiency of the pleadings under subsection (a)(7).

Cardenas v. 74-78 Post Ave. Hgts. Assoc. LLC · filed 2022-12-20(a)(7)

Although the portion of respondents-landlords' motion seeking dismissal did not identify the particular subdivision of CPLR 3211(a) relied upon, we treat it as one directed to the sufficiency of the pleadings ( see CPLR 3211[a][7]). As such, the motion was properly denied.

On a CPLR 3211(a)(7) motion, the court accepts the complaint's allegations as true when assessing whether an alleged agreement violates a statute.

Napolitano v. Bounce 21, LLC · filed 2023-01-24(a)(7)

Further, accepting the pleadings as true, defendants have not shown that the alleged consulting agreement with Napolitano, which did not involve his managing the business or serving alcohol, is violative of the statute ( cf. Sirkin v Fourteenth St. Store , 124 AD 384 [1st Dept 1908] [finding unenforceable a contract for goods procured by plaintiff who bribed defendant department store's purchasing agent]; Matter of Gabler v New York State Liq. Auth. , 43 AD2d 803 [4th Dept 1973] [confirming cancellation of license where licensee permitted person not named on the license to avail himself of the license by, among other things, allowing him to write checks on behalf of the restaurant and to tend bar at the restaurant]).

Under CPLR 3211(a)(7), a defendant's documentary evidence must establish that the complaint's supported factual allegations are not facts at all to warrant dismissal.

Thorpe v. AutoZone, Inc. · filed 2023-01-25(a)(7)

However, to the extent that the plaintiff's theory of negligent maintenance or mechanical malfunction was supported by factual allegations, Lease Plan failed to establish, through the submission of documentary evidence, that the allegations were not facts at all ( see CPLR 3211[a][7]; Harewood v Zip Car , 189 AD3d at 1193).

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

Cantor v. Villucci · filed 2023-01-25(a)(7)

'On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory'" ( Weinstein v Levitin , 208 AD3d 531, 532, quoting Gruber v Donaldsons, Inc. , 201 AD3d 887, 888).

On a CPLR 3211(a)(7) motion, the court accepts the complaint's facts as true, gives the plaintiff favorable inferences, and may consider the plaintiff's affidavits to remedy pleading defects.

Benjamin v. Yeroushalmi · filed 2023-01-25(a)(7)

In considering 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" ( Sokol v Leader , 74 AD3d 1180, 1181 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d at 87-88). In considering such a motion, "[t]he court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Houtenbos v Fordune Assn., Inc. , 200 AD3d 662, 664; see Leon v Martinez , 84 NY2d at 88).

A motion to dismiss a breach of contract claim must be denied when the complaint’s factual allegations disclose a cognizable cause of action.

Basal Trading & Sons Ltd. v. M&G Diamonds, Inc. · filed 2023-01-26(a)(7)

Since a cognizable cause of action for breach of contract can be discerned from the factual allegations of the complaint, the motion to dismiss that claim [*2]must be denied ( Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

A complaint that sets forth no legal theory and alleges no facts supporting one may be dismissed under CPLR 3211(a)(7) for failure to state a cause of action.

Church of Jesus Christ of Latter-Day Sts. v. Xiu Jian Sun · filed 2023-02-01(a)(7)

In this case, the complaint does not set forth any legal theory, nor does it allege any facts in support of a legal theory against the defendant Randy M. Pellew ( see CPLR 3013, 3014; Xiu Jian Sun v Lam , 143 AD3d at 892; Xiu Jian Sun v Dick Bailey Serv., Inc. , 143 AD3d 891, 891). Accordingly, the Supreme Court properly granted Pellew's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action.

On a CPLR 3211(a)(7) motion, the court accepts the complaint’s factual allegations as true and denies dismissal if the complaint adequately pleads a claim.

De La Cruz v. Evers Mar. & Seaplane Base · filed 2023-02-07(a)(7)

Accepting the facts as alleged in the complaint as true ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), the motion court correctly denied defendants' CPLR 3211(a) (7) motion to dismiss, as the complaint adequately pleads a claim sounding in negligence ( see e.g. Lowenstern v Sherman Sq. Realty Corp. , 143 AD3d 562, 562 [1st Dept 2016]).

Under CPLR 3211(a)(7), a complaint fails to state a breach of fiduciary duty claim when, even liberally construed, it alleges insufficient facts to support a fiduciary relationship.

New York Mar. & Gen. Ins. Co. v. Wesco Ins. Co. · filed 2023-02-09(a)(7)

Here, even giving the complaint a liberal construction, plaintiff has failed to plead sufficient facts to support its claim that AmTrust owed it a fiduciary duty.

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

Belcastro v. Roman Catholic Diocese of Brooklyn, N.Y. · filed 2023-02-15(a)(7)

On 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 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; see Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

Under CPLR 3211(a)(7), a complaint pleading coverage under an ambiguous insurance-policy carve-out can survive a motion to dismiss.

SSP Springs, LLC v. First Speciality Ins. Corp. · filed 2023-02-14(a)(7)

Thus, the meaning of the carve-out as it relates to the rule is ambiguous and, at the very least, plaintiffs have pleaded their complaint sufficiently to survive a motion to dismiss (see Village Mall at Hillcrest Condominium v Merrimack Mut. Fire Ins. Co. , 309 AD2d 857, 857-858 [2d Dept 2003]).

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.

Sullivan v. Port Wash. Union Free Sch. Dist. · filed 2023-02-22(a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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; see Boyle v North Salem Cent. Sch. Dist. , 208 AD3d 744; Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

On a motion 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.

Sullivan v. St. Ephrem R.C. Parish Church · filed 2023-03-08(a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of [*2]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; see Doe v Enlarged City Sch. Dist. of Middletown , 195 AD3d 595, 596).

Under CPLR 3211(a)(7), a court accepts a petition’s allegations as true and gives the petitioner every favorable inference, but may dismiss a claim whose allegations do not support the requested relief.

Matter of Lew v. Lew · filed 2023-03-08(a)(7)

"On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference" ( Matter of Gerety v Gerety , 203 AD3d 827, 829 [internal quotation marks omitted]). ... The father did not allege conduct on the part of the mother that, if proven, would rise to the level of deliberate frustration or active interference with his parental access rights so as to warrant suspension of his basic child support obligation ( see Matter of Mazzola v Lee , 76 AD3d 531, 532; see also Jones v Jones , 109 AD3d 877, 877-878).

A breach of contract claim may be dismissed under CPLR 3211(a)(7) when the complaint fails to identify the contractual provision allegedly breached.

Pierce Coach Line, Inc. v. Port Wash. Union Free Sch. Dist. · filed 2023-02-22(a)(7)

The Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging breach of contract. ... Here, the complaint failed to specify the provision of the parties' contract that was allegedly breached ( see NFA Group v Lotus Research, Inc. , 180 AD3d at 1061; Barker v Time Warner Cable, Inc. , 83 AD3d 750; Woodhill Elec. v Jeffrey Beamish, Inc. , 73 AD3d 1421, 1422).