N.Y. C.P.L.R. § 3211

An ambiguity in an insurance policy that requires a trial of intent prevents dismissal under CPLR 3211(a)(1) and (a)(7).

Goss v. Ætna Casualty & Surety Co. · filed 1966-10-20(a)(1), (a)(7)

... but we find that the clauses last above quoted create sufficient ambiguity to require a trial of the issue of intent.

A CPLR 3211 motion cannot resolve a legal-capacity issue that depends on where a contract was made when the submitted papers do not establish that fact; the issue must await trial.

Kosson & Sons v. Carleton · filed 1966-06-27

... it does not appear from the papers submitted that the contract between plaintiff and the general contractor was made here; and the question cannot be determined as a matter of law, on motion under CPLR 3211, but must await trial.

CPLR 3211(c) permits parties to submit evidence on a motion to dismiss as they would on a motion for summary judgment.

Brigham v. McCabe · filed 1966-12-30(c)

However, pursuant to CPLR 3211 (subd. [c]), the parties may submit evidence as on a motion for summary judgment.

A motion to dismiss a defense must be supported by an affidavit, the pleadings, and other available proof.

Brooks v. Horning · filed 1967-03-09(e)

On a motion to dismiss a defense the evidence to be submitted is governed by CPLR 3212 (subd. [b]) (CPLR 3211, subd. [e]) which provides that “A motion * * * shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.”

Section 3211(c) permits a court to consider a verified third-party complaint submitted in opposition to a motion to dismiss.

Pimm v. Graybar Electric Co. · filed 1967-04-06(c)

The verified third-party complaint of R G & B—which was presented by plaintiff in Opposition to the present motion and properly may be considered under CPLR 3211 (subd. [c]) — alleges that express and implied warranties were made by appellant to the buyer concerning the fitness and merchantability of the lighting fixture.

Documentary evidence does not warrant dismissal under § 3211(a)(1) when the asserted defense remains unresolved and material questions of intent require a trial.

Raben v. Overseas Barters, Inc. · filed 1967-07-25(a)(1)

By necessary corollary, we determine that the complaint is not dismissible under CPLR 3211 (subd. [a], par. 1), since the defense on the documentary evidence is not made good pending a plenary trial, upon which the facts as to usurious intent or an intent to accept an agreed price (of which the excessive interest was mutually agreed to be a part) may and should properly be determined (Carrington Bros. v. Gadsby, 237 App. Div. 195 [1932]; Guggenheimer v. Geiszler, 81 N. Y. 293, 296; Jefferson Title & Mtge. Corp. v. Dempsey, 153 Misc. 32, 35-36, affd. 242 App. Div. 626, mod. on other grounds 266 N. Y. 190).

On a motion treated like one under CPLR 3211, the petition’s material allegations are admitted unless affidavits controvert them.

Orange County Publications Division of Ottaway Newspapers-Radio, Inc. v. White · filed 1967-10-10(c)

Thus the material allegations of the petition are admitted for purposes of this motion except to the extent they are controverted by affidavits (cf. CPLR 3211, subd. [c]).

Section 3211 permits a court to require a hearing on factual issues relevant to a motion to dismiss.

Pomona Entererprises, Ltd. v. Mellen · filed 1968-06-24(a), (c)

In our opinion, it will be necessary to hold a hearing relating to all the circumstances concerning the relationship of attorney Milton B. Shapiro and plaintiffs (CPLR 2218; CPLR 3211, subds. [a], [c]).

On a motion to dismiss for failure to state a cause of action, the court considers only the allegations of the complaint.

Gavin v. Motor Vehicle Accident Indemnification Corp. · filed 1968-07-25(a)(7)

Thus far our discussion has necessarily been limited to the cause of action stated by the bare allegations of the complaint. No more than that may properly be considered on this motion.

A motion to dismiss under CPLR 3211 cannot resolve a disputed factual issue that requires a trial.

Dacus v. Spin-Nes Realty & Construction Co. · filed 1968-07-01

In any event, the truth of the matter may not be ascertained, without a trial of the issue, simply upon a motion for dismissal of the .complaint or summary judgment.

On a motion to dismiss under CPLR 3211, the complaint’s allegations are deemed true.

Marthann Realty Co. v. Meade · filed 1969-02-14

Based on the record in this proceeding and that, on a motion to dismiss pursuant to CPLR 3211, the allegations of the complaint are deemed to be true (Schwartz v. Heffernan, 304 N. Y. 474; St. Regis Tribe v. State of New York, 5 N Y 2d 24), this court denies the motion to dismiss and directs the defendants to file answers in both the Marthann Realty Co. and O’Connell proceedings.

Section 3211(d) permits denial of a motion to dismiss when facts essential to opposing it are not yet available.

Weiss v. Wolin · filed 1969-09-17(d)

Further support for the foregoing conclusions may be found in CPLR 3211 (subd. ...[d]) and 3212 (subd. [f]) which would permit the denial of the relief under either section where the facts essential to opposition are not as yet available.

When affidavits supporting a motion to dismiss show that an allegedly defamatory communication was qualifiedly privileged, the plaintiff must provide evidentiary facts from which malice may be inferred.

Barnes v. City of New York · filed 1970-02-05(c)

In this posture, plaintiff was obliged to come forward with evidentiary facts from which respondents’ alleged malice might be inferred.

A motion to dismiss based on documentary evidence should be denied when factual issues remain for trial.

White v. Liberty Mutual Insurance · filed 1970-04-02(a)(1)

Liberty claims that the above-enumerated' documentary evidence requires a dismissal of the various complaints. I do not agree. ... These cases should not be dismissed at this stage because there are many matters which must be resolved either by a court or a jury after a trial.

CPLR 3211(c) permits summary judgment on a motion to dismiss for legal insufficiency when both parties submit affidavits and no factual question remains.

Yonkers Raceway, Inc. v. City of Yonkers · filed 1971-04-19(c)

As the City has moved to dismiss the complaint for legal insufficiency and affidavits have been submitted by both parties, the court may, if warranted, render summary judgment. (CPLR 3211, subd. [c].) ... No question of fact exists. The court, upon these papers grants summary judgment declaring that these revenues derived by the Raceway from parking are not taxable by the City; that there is no authority in the Comptroller or City to levy or seek to levy a local tax on this form of income.

Documentary evidence does not warrant dismissal under Section 3211(a)(1) when factual issues remain for trial.

Reilly v. Town of Brookhaven · filed 1970-06-22(a)(1)

There are factual issues not disposed of as a matter of law by the documentary evidence submitted. Disposition of these issues will require a trial.

On a pre-answer motion to dismiss under CPLR 3211(a)(5), the court draws the facts from the complaint and affidavits.

Conklin v. Jablonski · filed 1971-07-29(a)(5)

Since the motion is made prior to answer, the facts on which it is to be decided are to be drawn from the complaint and affidavits.

On a motion to dismiss, the court may consider the complaint and undisputed facts in the answer and affidavits when assessing a claimed conflict of interest.

Rapoport v. Schneider · filed 1972-01-13(c)

In searching for a conflict of interest, however, on the part of the other two plaintiffs, the court may look to the complaint and undisputed facts contained in the answer and affidavits (CPLR 3211, subd. [c] ; Hamilton Print. Co. v. Payne Corp., 26 A D 2d 876; Epps v. Yonkers Raceway, 21 A D 2d 798; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., ¶3211.43; 6 Carmody-Wait, 2d, N. Y. Prac., § 38:38).

On a motion to dismiss under CPLR 3211(a)(7), the presumption that a tax assessment is correct does not apply.

McNamara v. Board of Assessors · filed 1972-05-25(a)(7)

On a motion to dismiss, this presumption is not applicable.

Section 3211(a)(1) does not permit dismissal based on documentary evidence when the documents leave material questions about the parties’ agreement unresolved.

Communications Fund, Inc. v. Wiry, Inc. · filed 1972-06-13(a)(1)

In this action for specific performance of the warrants to purchase 17% shares of defendant’s stock or, alternatively, damages, defendant moved to dismiss on the ground of a defense founded on documentary evidence (CPLR 3211, subd. [a], par. 1). ... The various negotiations and written communications between the parties, including more particularly that of September 9, 1968, raise a question as to the intent and agreement of the parties. There is also a question as to the actual date of clearance at defendant’s bank, and the significance thereof in terms of the understanding between the parties. ... We make no such determination but advert to the possibility as an additional reason why disposition of this matter should await trial.

Section 3211(c) permits a final determination when a motion to dismiss and its supporting submissions effectively answer the petition and present the movant’s defenses.

Dreyfuss v. Board of Education of Union Free School District No. 3 · filed 1973-12-20(c)

In recapitulation, our holdings were, and are, that (1) the board, while technically moving in limited scope to dismiss the petition for insufficient facts stated, has affirmatively stated rather comprehensively its version of the facts in an affidavit by its assistant superintendent and has then, in substance, answered and presented its defenses, including a thorough memorandum of law, ... allows the court to proceed to a final determination (CPLR 103; CPLR 105; CPLR 3211, subd. [c]; ... The motion to dismiss by the board is denied.

Section 3211(c) permits a court deciding a motion to dismiss to consider a certified resolution submitted in opposition.

Marshall v. Quinones · filed 1974-02-22(c)

Second, it is apparent from the certified copy of the resolution of the Common Council of the City of Lockport, submitted in opposition to the motion to dismiss and properly before us (CPLR 3211, subd. [c]), that by that resolution petitioner was designated to .bring the proceeding on behalf of the city itself, which is a person or party aggrieved and entitled to institute the proceeding under subdivision 1 of section 82 of the General City Law (Matter of City of Glen Cove v. Buxenbaum, 17 A D 2d 828).

Section 3211 permits a court to consider a party’s letter on a motion to dismiss even if the letter might not be admissible at trial.

Fuchs & Lang Sun Chemical de Venezuela v. Schenectady Chemicals, Inc. · filed 1974-01-31

His retention of the complaint clearly constitutes ¡a waiver of his right to object to its late service (cf. Lavigne V. Allen, 36 A D 2d 981; Lucenti v. City of Buffalo, 29 A D 2d 833) and the letter which plaintiffs submitted into evidence exerted no improper influence upon the trial court as it would in all likelihood be admissible at the trial as an admission, and, even if it were not, it could properly be considered on this motion under CPLR 3211 (4 Weinstein-Kom-Miller, 1ST. V. 'Civ. Prae., par. 3211.01; Phillips v. Kantor <& Go., 31 N Y 2d 307).

Section 3211(e) permits a court to consider examination-before-trial testimony on a motion to dismiss for failure to state a cause of action.

Robert H. Law, Inc. v. Kosoff & Sons, Inc. · filed 1974-10-24(e)

The testimony of Robert H. Law, president of plaintiff, in his examination before trial may properly be considered on the motion to dismiss for failure to state a cause of action (CPLR 3211, subd. [e]).

Section 3211 does not permit dismissal on documentary evidence when the pleadings and evidence raise questions of fact about the parties’ intent that require a trial.

Allied Roofers Supply Co. v. Nanuet National Bank · filed 1974-07-29(a)

The pleadings and documentary evidence raise questions of fact as to the parties’ intent which may be resolved only on a trial.

Section 3211(c) requires the court to consider evidence submitted with or against a motion to dismiss when deciding whether a cause of action exists.

Southworth v. State · filed 1975-06-17(c)

I must, of course, consider and weigh evidence submitted with or in opposition to a motion to dismiss. (CPLR 3211, subd [c].) Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion.

On a motion under CPLR 3211(a)(7) directed at the face of a pleading without evidentiary material, the pleading is liberally construed and its factual allegations are taken as true.

Geltzer v. Russell · filed 1975-10-07(a)(7)

The third-party defendant’s attack on the third-party complaint pursuant to CPLR 3211 (subd [a], par 7) is made without the submission of evidentiary material and is directed to the face of the pleading. Under these circumstances, the pleading is liberally construed and the truthfulness of its factual allegations is not in issue.

Section 3211(c) permits the court to consider contested matters relevant to deciding a motion to dismiss.

Lincoln First Bank v. Barstro & Associates Contracting, Inc. · filed 1975-10-31(c)

Memorandum: Special Term properly considered all of the "contested” matters which were relevant to its determination (CPLR 3211, subd [c]) and correctly granted plaintiffs motion to dismiss defendants’ counterclaim on the ground that it failed to state a cause of action (CPLR 3211, subd [a]) for either prima facie tort or the intentional infliction of emotional distress.

On a CPLR 3211 motion for failure to state a cause of action, when the movant submits no affidavits or other evidence, the court’s inquiry is limited to the pleadings.

Gonsenhauser v. Central Trust Co. · filed 1976-01-16

However, a party is not required to plead performance of a condition precedent (CPLR 3015) and, since plaintiff presented his motion as one for failure to state a cause of action under CPLR 3211 and submitted no affidavits or evidentiary documents in support of it, the inquiry of the court was limited to the allegations of the pleadings (Williams v Williams, 23 NY2d 592, 595-596; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.44, p 32-121).

Section 3211(d) permits discovery when a party shows that facts may exist to oppose a motion to dismiss.

Amigo Foods Corp. v. Marine Midland Bank · filed 1976-05-04(d)

We reverse and hold that discovery should be permitted on the jurisdictional issue. If a party demonstrates that facts may exist in opposition to a motion to dismiss, discovery is sanctioned (Peterson v Spartan Ind.., 33 NY2d 463, 467; cf. CPLR 3211, subd [d]).

CPLR 3211(c) permits the court to consider a trust agreement when deciding whether a petition alleges a secret trust.

In re the Estate of Frank · filed 1976-05-28(c)

However, examination of the trust agreement, which is properly to be considered on this issue (CPLR 3211, subd [c]), compels the conclusion that there was no such "secret trust”.

On a CPLR 3211(a)(5) or (7) motion, a defendant’s contentions about intent to guarantee and lack of consideration are irrelevant.

Schulman v. Westchester Mechanical Contractors, Inc. · filed 1977-02-22(a)(5), (a)(7)

Appellant’s contentions that he never intended to make a personal guarantee and that, in any event, there was no consideration to support the guarantee, are irrelevant on his motion to dismiss pursuant to CPLR 3211 (subd [a], pars 5, 7).

An attorney affirmation lacking personal knowledge and relevant expertise is insufficient to establish the factual basis for a CPLR 3211(a)(5) motion to dismiss on statute-of-limitations grounds.

Banks v. Auerbach · filed 1977-03-28(a)(5)

Order, Supreme Court, New York County, entered on December 7, 1976, denying defendant’s motion under CPLR 3211 (subd [a], par 5) to dismiss the complaint on the ground of the Statute of Limitations, is unanimously affirmed, without prejudice. ... The factual basis for defendant’s motion rests entirely on an affirmation of an attorney who has neither personal knowledge of the facts, nor acceptable dental expertise. Such an affirmation is insufficient to present a factual record for judicial action in this case.

On a motion to dismiss for failure to state a cause of action, the movant must establish conclusively that the plaintiff has no cause of action.

Beyer v. Aquarium Supply Co. · filed 1977-04-14(a)(7)

This is a motion, pursuant to CPLR 3211 (subd [a], par 7) to dismiss plaintiffs’ second cause of action which is founded upon the theory of strict products liability. ... On this type of motion, the movant can prevail only if he can establish conclusively that the plaintiff has no cause of action.

Under section 3211(a)(1), affidavits cannot establish disputed facts as documentary evidence sufficient to dismiss a complaint.

Fletcher v. Fletcher · filed 1977-02-15(a)(1)

The documentary evidence is not sufficient to disprove plaintiff’s claim, if the motion is not converted to one for summary judgment, inasmuch as, aside from the deed itself, the documents consist of affidavits. Affidavits may not themselves stand as proof of the facts in dispute.

Section 3211(a)(1) permits a motion to dismiss when a defense is founded on documentary evidence; the rule concerning affidavits on a failure-to-state-a-cause-of-action motion under (a)(7) does not apply.

American Industrial Contracting Co. v. Travelers Indemnity Co. · filed 1977-10-06(a)(1)

That case dealt only with the propriety of using affidavits in support of a motion to dismiss the complaint for legal insufficiency, that is, for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7). In this case, where the motion, pursuant to paragraph 1 of subdivision (a), was one to dismiss on the ground that a defense is founded upon documentary evidence, the Rovello case has no application.

On a motion to dismiss, affidavits opposing the motion may establish that the pleader has a cause of action even if the complaint appears insufficient.

Scarlett Letters, Inc. v. Compugraphic Corp. · filed 1978-03-16(c)

In affirming Special Term’s determination that the complaint stated valid causes of action, we assume that the court gave due consideration to the affidavits submitted in opposition to the motion which set forth allegations of unconscionability and inconspicuous notice (Uniform Commercial Code, §§ 2-302, 1-201, subd 10) in avoidance of the disclaimer provisions of the lease-purchasing agreement in issue, upon which defendant in its motion relied. (CPLR 3211, subd [c].) Otherwise, the complaint, which pleaded the agreement, a copy of which was annexed thereto, may, superficially, have failed to state a cause of action. But the test for us is not whether the complaint states a cause of action but whether the pleader has, in fact, a cause of action.

Dismissal under CPLR 3211(a)(1) is improper when triable issues of fact have been presented.

Hall v. Craig · filed 1978-01-03(a)(1)

In an action for specific performance to compel defendant to take delivery of certain shares of stock, and to direct the payment therefor, plaintiffs appeal from an order of the Supreme Court, Kings County, entered January 19, 1977, which (1) granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 1) and (2) denied their cross motion for summary judgment. ... Dismissal of the complaint was improperly granted. In our opinion, triable issues of fact have been presented.

On a Section 3211 motion to dismiss, the court accepts the complaint’s allegations and admissible portions of the plaintiff’s supporting affidavits.

Simcuski v. Saeli · filed 1978-05-04(c)

On defendant’s present motion to dismiss the complaint under CPLR 3211 (subd [a], par 5) on the ground that the ...plaintiffs claims are barred by the Statute of Limitations, we accept the allegations of the complaint and the admissible portions of plaintiffs supporting affidavits (CPLR 3211, subd [c]).

When parties submit affidavits or other material outside the pleadings on a motion to dismiss for failure to state a cause of action, the question is whether the plaintiff has a cause of action.

Broughton v. Dona · filed 1978-06-29(a)(7)

Regarding dismissal of the complaint against defendants Camp, Bivona, Johnson and Blakeslee, this court has recently restated the rule in this department that when a motion concerning whether or not a complaint states a cause of action has been made and affidavits and/or matters extrinsic to the pleadings are submitted by the parties, the issue becomes whether or not a plaintiff has a cause of action (Wolcott v Broughton, 57 AD2d 1022).

On a motion to dismiss based on documentary evidence, the court may resolve a declaratory judgment claim on the merits when the documents establish the parties’ rights.

Fillman v. Axel · filed 1978-06-01(a)(1)

We have examined closely the documents submitted by both parties on defendants’ motion to dismiss on the ground of documentary evidence. (CPLR 3211, subd [a], par 1.) The broad powers vested in the board of directors to manage the building clearly encompass the right to make the decisions here challenged. Nothing in the proprietary lease nor in the plan of co-operative organization in any way qualifies the power of the board of directors to so act. Accordingly, defendants are entitled to a judgment declaring their lawful authority to automate the building’s elevators and to take whatever action may be proper to achieve that end.

On a motion to dismiss under CPLR 3211(a)(7), the court assumes the pleaded allegations are true and gives the pleader every favorable inference.

Vaccaro v. Squibb Corp. · filed 1978-11-01(a)(7)

On a motion to dismiss, this court must assume the truth of the allegations contained in the causes of action under attack. ... The pleader is entitled to every favorable inference that might be drawn from the pleading.

CPLR 3211(c) does not permit summary judgment on a request made only in an answering affidavit; a proper application is required.

Belinson v. Sewer District No. 16 of Town of Amherst · filed 1978-11-03(c)

While in the answering affidavit of defendants’ attorney he asked that the plaintiffs’ complaints be stricken upon the ground that the actions are barred by the Workers’ Compensation Law, no application was made for summary judgment. Such relief could not be granted in the absence of a proper application to the court but may be the subject of a later application (CPLR 3211, subd [c]).

On a motion to dismiss under CPLR 3211(a)(5), the court determines whether the complaint on its face alleges a cognizable claim without making factual findings.

Suderman v. Integrated Display Systems, Inc. · filed 1978-12-05(a)(5)

Special Term’s characterization of the complaint as an attempt to avoid the Statute of Frauds defense by asserting a "magical” one-year period of retention from December 20, 1976 to December 19, 1977, amounts to fact finding, not warranted since the only issue before the court upon the motion to dismiss was whether the complaint on its face alleged a cognizable claim for relief.

Section 3211(b) allows a plaintiff to move to dismiss a defense and empowers the court to search the record and dismiss defective causes of action and defenses.

Groat v. Town Board · filed 1979-05-03(b)

Initially, it should be noted that when a plaintiff moves pursuant to CPLR 3211 (subd [b]), to dismiss a defense, the court is empowered to "search the record” and dismiss any defective causes of actions as well as any defective defenses. (CPLR 3211, subd [c]; 3212, subd [b].)

Under CPLR 3211(a)(1), a motion to dismiss based on documentary evidence should be denied if any provable cause of action can be spelled out from the complaint.

Ecker v. Wright · filed 1979-04-13(a)(1)

Without answering the complaint defendant moved to dismiss on the ground that it is founded on a written contract as documentary evidence which shows on its face that plaintiff has no cause of action (CPLR 3211, subd [a], par 1). Thus, if any provable cause of action can be spelled out from the complaint the motion should be denied (see American Ind. Contr. Co. v Travelers Ind. Co., 42 NY2d 1041, 1043).

Section 3211(a)(7) allows a court deciding a failure-to-state-a-cause motion to consider extrinsic matter submitted by the parties.

Hatlee v. Owego-Apalachin School District · filed 1979-08-02(a)(7)

On a motion to dismiss a complaint for failure to state a cause of action "the court is no longer limited to a consideration of the pleading itself but may consider extrinsic matter submitted by the parties in disposing of the motion.” (Kelly v Bank of Buffalo, 32 AD2d 875; Hamilton Print. Co. v Payne Corp., 26 AD2d 876.)

Section 3211(a)(7) permits dismissal for failure to state a cause of action, but after issue is joined the motion is treated as one for summary judgment.

State Farm Mutual Automobile Insurance Companies v. Brooks · filed 1979-10-31(a)(7)

Although the defendant’s papers are styled as a motion to dismiss, it is clear that, issue having been previously joined by the service of defendant’s amended answer to plaintiff’s amended complaint, the motion is in fact a motion for summary judgment. (CPLR 3211, subd [a], par 7.)

Section 3211(a)(1) permits dismissal when a defense is founded on documentary evidence, but the movant must submit competent supporting papers rather than an attorney affirmation lacking personal knowledge.

Rubin v. Rubin · filed 1979-10-30(a)(1)

In the circumstances, it would seem that at a minimum the party making the motion should say under oath that the one representation was true and the other not made, and even that the income tax return is a correct copy of the return and correctly states his gross income. These requirements are not met by the moving papers. We have an affirmation by his attorney stating that annexed thereto is defendant’s 1975 income tax return. Apart from the question raised by the plaintiff as to whether the tax return is accurate, there is nothing in the papers to indicate what basis or personal knowledge the attorney has which enables him to tell us that the copy is even a true copy; and the copy of the return annexed (really only the first page of the return) is unsigned.

A plaintiff opposing a CPLR 3211(a)(7) motion or seeking to replead must submit an affidavit supplying facts supporting the cause of action; an attorney’s affidavit is inadequate when the facts are not peculiarly within counsel’s knowledge.

McDermott v. Village of Menands · filed 1980-02-07(a)(7), (e)

Since such facts are not peculiarly within the knowledge of plaintiff’s counsel, the attorney’s affidavit is inadequate both to resist the CPLR 3211 motion to dismiss and as supportive of the cross motion to replead (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:64, pp 68-69; see, also, Rovello v Orofino Realty Co., 40 NY2d 633).

Section 3211(a)(7) permits a court deciding a motion to dismiss for failure to state a cause of action to consider extrinsic matter submitted by the parties.

Lafferty v. Manhasset Medical Center Hospital · filed 1980-02-25(a)(7)

However, on such a motion, "the court is [not] limited to a consideration of the pleading itself but may consider extrinsic matter submitted by the parties in disposing of the motion.” (Kelly v Bank of Buffalo, 32 AD2d 875.)

Section 3211(a)(5) does not require dismissal merely because the opposing party fails to submit a personal knowledge affidavit when the relevant statute of limitations facts are undisputed.

Szajna v. Rand · filed 1980-04-21(a)(5)

Nor was plaintiffs failure to submit, in opposition to defendants’ motion, an affidavit of an individual, with personal knowledge of the facts fatal since the facts upon which the Statute of Limitations issue depended were not in dispute.

On a motion to dismiss under CPLR 3211, the court does not properly consider facts that were neither pleaded nor otherwise submitted.

Plaza Health Clubs, Inc. v. City of New York · filed 1980-08-14

Although not properly submitted for consideration on a CPLR 3211 motion, not being pleaded or otherwise submitted, it is now asserted by plaintiffs that they employ only licensed male masseurs, thus bringing themselves within the most recent amendment to the resolution, excluding from the proscription premises used or operated by licensed masseurs and massagers (Deans v Minkin, New York County Index No. 16581/79).

Section 3211(c) leaves the decision to hold a separate pretrial hearing on a jurisdictional motion to dismiss to the trial court's discretion.

De Vore v. Osborne · filed 1980-11-06(c)

While ordinarily a hearing might be held when affidavits submitted upon a motion are in marked conflict under CPLR 3211 (subd [c]), the question of whether a jurisdictional attack should be considered in a separate hearing in advance of the trial is left to the sound discretion of the trial court (Usher v Usher, 41 AD2d 368, concurring opn, p 371).

A motion to dismiss under CPLR 3211(a)(1) or (a)(7) may be denied when the allegations and evidence present factual issues requiring trial.

Wainer v. Village of Ellenville · filed 1980-06-12(a)(1), (a)(7)

Even though the State’s documentary evidence establishes that the appropriated easement entitled the State to "clear and grub” the levee of trees, this evidence is insufficient to justify a dismissal of the complaint under either paragraph 1 or paragraph 7 of CPLR 3211 (subd [a]) because of the unusual situation presented in this case.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense to the pleaded claims.

Limmer v. Medallion Group, Inc. · filed 1980-06-24(a)(1)

Finally, we affirm Special Term’s denial of the individual defendants’ motion to dismiss the first three causes of action based on documentary evidence. Such evidence does not conclusively show a benefit accruing to the corporations as a result of the sale and leaseback transactions at issue. As Special Term pointed out, plaintiff may be able to prove available alternate arm’s length transactions more beneficial to the corporations.

Under CPLR 3211(a)(7), a plaintiff need not present evidentiary facts when opposing a motion to dismiss, but a punitive damages claim needs some support in the complaint or elsewhere.

Twitchell v. MacKay · filed 1980-12-23(a)(7)

While plaintiffs were not required to present evidentiary facts in opposition to the motion under CPLR 3211 (subd [a], par 7), there should be some showing in the complaint or elsewhere to support a claim for punitive damages.

Section 3211 permits the court to consider affidavits with a complaint when deciding whether it states a cause of action.

Meese v. Miller · filed 1981-02-26(a)(7)

Here, plaintiff’s complaint is supported by affidavits, a permitted procedure under CPLR 3211, and when considering the complaint and affidavits together plaintiff has stated a cause of action in conversion as well as fraud and deceit for the reasons above stated.

On a motion to dismiss for failure to state a cause of action, the court must deem the complaint’s allegations true and draw reasonable inferences in the plaintiff’s favor.

Drozdzal v. Khan · filed 1981-03-31(a)(7)

On a motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss for failure to state a cause of action, all the allegations of the complaint must be deemed true, and all reasonable inferences which may be attendant therein must be determined in a manner most favorable to the ... plaintiff (Schuster v City of New York, 5 NY2d 75).

Under CPLR 3211(a)(1), documentary evidence that establishes a complete defense supports dismissal.

Lydon v. Lydon · filed 1981-09-30(a)(1)

Based upon the documentary evidence presented, the petition to modify an order of another court is dismissed. Petitioner has no cause of action based on the facts presented and respondent has set forth a complete defense based on documentary evidence.

Under CPLR 3211(a)(7), affidavits warrant dismissal when they conclusively establish that the plaintiff has no cause of action.

Allen v. Gordon · filed 1982-01-12(a)(7)

... it is clear that where the affidavits on a motion to dismiss made under CPLR 3211 (subd [a], par 7) conclusively establish that plaintiff has no cause of action, dismissal is warranted.

On a CPLR 3211(a)(7) motion to dismiss, the court may consider affidavits in deciding whether the complaint adequately states a claim.

Computer Task Group, Inc. v. Professional Support, Inc. · filed 1982-05-14(a)(7)

Special Term is permitted to consider these affidavits in its consideration of a pleading motion to dismiss based on CPLR 3211 (subd [a], par 7) {Rovello v Orofino Realty Co., 40 NY2d 633, 635; Kelly v Bank of Buffalo, 32 AD2d 875); and the complaint together with the facts stated in the Seiler affidavit adequately apprise defendants that the plaintiffs seek recovery on the basis of unfair competition through breach of a fiduciary obligation {Guggenheimer v Ginzburg, 43 NY2d 268; Meese v Miller, 79 AD2d 237).

On a motion to dismiss, the court may consider a bill of particulars and affidavits to determine whether the plaintiff has a potentially meritorious cause of action without converting the motion to one for summary judgment.

Huyler v. Rose · filed 1982-05-14(a)(7)

The motion to dismiss was not converted into a motion for summary judgment (see CPLR 3211, subd [c]). Nevertheless, extrinsic material such as the bill of particulars and affidavits on the motion may be considered in determining whether plaintiff has a “potentially meritorious” cause of action (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; see Kelly v Bank of Buffalo, 32 AD2d 875; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.43; 6 Carmody-Wait 2d, NY Prac, § 38:19).

On a motion to dismiss under CPLR 3211, the court treats the complaint’s allegations as true and gives the plaintiff all favorable inferences.

Church of Christ the King, Inc. v. City of Yonkers · filed 1982-09-07

The rule is fundamental that upon á motion to dismiss the complaint pursuant to CPLR 3211 all the allegations must be deemed to be true and plaintiff is entitled to the benefit of all favorable inferences which may be drawn therefrom.

On a motion to dismiss under § 3211(a), a defendant’s affidavit warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Mary Imogene Bassett Hospital v. Hospital Plan, Inc. · filed 1982-10-29(a)

An affidavit submitted by a defendant to support a 3211 (subd [a]) motion to dismiss will seldom, if ever, warrant the relief he seeks unless the affidavits conclusively establish that plaintiff has no cause of action (Rovello v Orofino Realty Co., 40 NY2d 633, 636).

CPLR 3211 does not permit dismissal when material factual issues must be resolved by a trier of fact rather than on affidavits alone.

Pilgreen v. 91 Fifth Avenue Corp. · filed 1982-12-21

These are essentially factual issues which cannot be finally resolved upon affidavits alone, but are more appropriately matters to be reserved to the trier of the facts. Upon this basis, we find that Special Term erred in dismissing the first cause of action for declaratory judgment and injunctive relief.

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents resolve all factual issues as a matter of law.

Lake Placid Village, Inc. v. Lake Placid Main Street Corp. · filed 1982-11-04(a)(1)

A defense based upon documentary evidence (CPLR 3211, subd [a], par 1) is not dispositive unless the documents submitted resolve all of the factual issues as a matter of law (Reilly v Town of Brookhaven, 34 AD2d 1001). Here, there are substantial factual questions with respect to the possibility of a prescriptive tight of way in the State, the width of that way, and the contour of the “travelled portion” of Main Street.

Section 3211(a)(1) permits dismissal when documentary evidence establishes a defense to the petition.

Matter of Wiener v. Bd. of Educ. of the East Ramapo Cent. Sch. Dist. · filed 1982-11-22(a)(1)

The agreement is sufficient documentary evidence that the petitioners were not entitled to seniority credit for the time spent as regular substitute teachers and accordingly the petition should have been dismissed.

A motion to dismiss for failure to state a cause of action may be granted when affidavits and other proof show that no dispute exists.

Richardson v. Dorato · filed 1983-02-17(a)(7)

When the movant, as here, shows by affidavits and other proof that no dispute exists, a motion under CPLR 3211 (subd [a], par 7) can properly be granted (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:25, p 31).

Section 3211(a)(1) does not treat an affidavit as documentary evidence supporting a motion to dismiss.

Williamson, Picket, Gross, Inc. v. Hirschfeld · filed 1983-03-17(a)(1)

To the extent the affidavit is so used we must ignore it since an affidavit does not qualify as “documentary evidence” which will support a motion to dismiss under CPLR 3211 (subd [a], par 1).

CPLR 3211(c) permits a court to consider facts presented by both sides when deciding a motion to dismiss, even if the complaint is not facially defective.

Stein v. Blatte · filed 1983-03-23(c)

Because of plaintiffs’ failure to refer in the complaint here to their foreclosure action, the complaint is not facially defective. However, it is apparent from the facts as presented by both sides (see CPLR 3211, subd [c]) that plaintiffs cannot allege a necessary element of their cause of action.

Under CPLR 3211(a)(7), a complaint must be dismissed when a contract attached to it shows that the defendant did not wrongfully withhold promised performance.

805 Third Ave. Co. v. M.W. Realty Associates · filed 1983-03-31(a)(7)

Thus, we must determine defendant’s obligation from the contract and if it does not appear from the pleading as a whole that defendant has wrongfully withheld its promised performance, the complaint must be dismissed.

When affidavits are submitted on a CPLR 3211(a)(7) motion that has not been converted to summary judgment, dismissal is warranted only if they conclusively establish that the plaintiff has no cause of action.

Fields v. Leeponis · filed 1983-06-20(a)(7)

Where, as here, affidavits are submitted on a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) which has not been converted into a summary judgment motion, the question to be determined is whether the plaintiffs actually have a cause of action, and a dismissal will be warranted only in those situations where the affidavits conclusively establish that there is no cause of action (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Rovello v Orofino Realty Co., 40 NY2d 633, 636; Brown v Brown, 87 AD2d 680).

CPLR 3211(a)(1) permits dismissal when documentary evidence establishes a valid defense to the claim.

Williams v. Berkshire Life Insurance · filed 1983-06-02(a)(1)

Given these circumstances, it is obvious that plaintiff’s claim is without merit because of the existence of a valid defense based upon documentary evidence in the record, and consequently, the motion to dismiss was properly granted.

On a CPLR 3211 motion to dismiss for failure to state a cause of action, the court must draw every reasonable inference from the record in the petitioner's favor.

Schmidt v. Magnetic Head Corp. · filed 1983-11-14

This proceeding is presently before us in the posture of an appeal from a judgment dismissing the petition for failure to state a cause of action, pursuant to CPLR 3211, wherein Special Term applied the preponderance of evidence criterion. This was an inappropriate standard since, at this juncture, every reasonable inference must be drawn from the record in petitioner’s favor (Rovello v Orofino Realty Co., 40 NY2d 633, 634; Friedman v Roseth Corp., 271 App Div 870).

On a motion to dismiss under CPLR 3211(a)(7), when the movant submits evidence outside the pleadings, the court need not assume the pleaded allegations are true.

Kaufman v. International Business Machines Corp. · filed 1983-11-23(a)(7)

Finally, in a situation such as presented herein where the moving party offers matters extrinsic to the pleadings, such as supporting affidavits, the court, on a motion to dismiss brought pursuant to CPLR 3211 (subd [a], par 7), need not assume the truthfulness of the pleaded allegations (Penato v George, 52 AD2d 939).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence disposes of the complaint’s allegations; a stopped-payment check does not establish failure of consideration when the plaintiff alleges the defendant failed to satisfy a condition of the contract.

Bouquet Brands Division of J & D Food Sales, Inc. v. Citibank (New York State), N. A. · filed 1983-11-23(a)(1)

The stop-payment check does not provide documentary evidence of the failure of consideration. ... A stop-payment check is not such an objection where, as here, the contract was conditioned on defendant’s fulfillment of its promise to make the equipment available on a specific date, a condition that plaintiff alleges was not met.

Section 3211(a)(1) allows a claim to be defeated by an affirmative defense established by documentary evidence, such as a written lease.

Lebowitz v. Mingus · filed 1984-04-24(a)(1)

Defendant is independently entitled to a declaration in her favor on the essential issues of possession and ownership because of an affirmative defense founded upon documentary evidence, the written lease.

Documents submitted on a CPLR 3211(a)(1) and (7) motion do not warrant dismissal when they are insufficient, without more, to establish a defense to the pleaded causes of action.

Vinnik v. 795 Fifth Avenue Corp. · filed 1984-05-03(a)(1), (a)(7)

We agree with the Appellate Division and for the reasons stated by that court (94 AD2d 685) that the documents submitted by defendants on their motion to dismiss under CPLR 3211 (subd [a], pars 1, 7) are not sufficient, without more, to constitute a defense to the causes of action alleged in the complaint warranting its dismissal.

On a motion to dismiss for failure to state a cause of action, the court draws all inferences from the pleadings in the plaintiff’s favor.

Abrams v. Richmond County S.P.C.C. · filed 1984-07-10(a)(7)

In considering the application as one pursuant to CPLR 3211 (subd [a]), the court must draw all inferences from the pleadings favorable to the plaintiff.

On a motion to dismiss for failure to state a claim, the movant need not assume the truth of the pleading’s allegations, and the court may look beyond the pleading.

Riffat v. Continental Insurance · filed 1984-08-02(a)(7)

In seeking such relief pursuant to CPLR 3211 (subd [a], par 7), a movant is not compelled to assume the truth of the pleader’s allegations. ... Nor in deciding such a motion is a court limited to the face of the pleading.

Section 3211(a)(1) does not warrant dismissal based on documentary evidence when the documents leave a factual issue about the parties’ intent.

Boyarsky v. Froccaro · filed 1984-06-22(a)(1)

The plaintiff seeks dismissal of the counterclaims pursuant to CPLR 3211 (subd [a], par 1) (a defense founded on documentary evidence), urging that the agreements can only be construed as creating a partnership or joint venture to buy and sell the land for a profit. ... The presence of such provisions in the instant agreement raises an issue as to the real nature of the transaction. ... Thus, the defendants should have an opportunity to try their counterclaims and to show, if they can, that the intent of the parties was as they allege. ... The cross motion to dismiss the counterclaims is denied.

On a motion to dismiss for failure to state a claim under CPLR 3211(a)(7), the court cannot consider a defendant’s argument that a factual allegation is false.

Carney v. Memorial Hospital & Nursing Home of Greene County · filed 1985-01-15(a)(7)

To the extent that defendants argue that plaintiff is wrong in alleging that the statement is false, their argument may not be considered on a motion to dismiss under CPLR 3211 (a) (7) for failure to state a claim (see, e.g., Morone v Morone, 50 NY2d 481, 484).

A motion to dismiss on limitations grounds must be denied when a material factual question remains about whether the action is timely.

1303 WEBSTER REALTY v. Ins. Co. · filed 1984-10-23(a)(5)

The papers submitted by plaintiff in opposition to defendant Great American Surplus Lines Insurance Company's motion to dismiss raise a material question of fact as to whether the policy issued by that defendant contained a reference to a limitations period for commencing suit. Plaintiff's action against Great American would be timely if the six-year Statute of Limitations were applicable — i.e., if the policy had no such reference and thus the motion to dismiss the complaint as it relates to the Great American policy must be denied.

On a CPLR 3211 motion to dismiss, the court assesses the sufficiency of the pleading and leaves disputed merits for trial or summary judgment.

Pamela Equities Corp. v. Camp · filed 1985-02-22

Whether or not petitioner will be able to ultimately prevail on this summary proceeding should be determined either at trial or on a motion for summary judgment.

Section 3211(c) permits a hearing on factual issues that may dispose of a motion to dismiss.

Rosen v. Bernard · filed 1985-02-25(c)

Pursuant to these principles, the issues of the independence of the special litigation committee and the methods of its investigation are potentially dispositive of the lawsuit, and a hearing of these issues should be held (CPLR 3211 [c]; Siegel, NY Prac § 271).

CPLR 3211 (a) (1) and (7) do not warrant dismissal when a factual issue remains concerning the plaintiffs’ status as employees under a liability policy.

Kriegler v. Aetna Casualty & Surety Co. · filed 1985-02-28(a)(1), (a)(7)

As to the pension and welfare fund fiduciary responsibility policy, which is a liability policy, we agree that dismissal of the complaint under either CPLR 3211 (a) (1) or (7) is inappropriate at this time since, at the very least, an issue of fact is presented concerning plaintiffs’ status as employees of the Pressmen’s Union and the Fund in the Federal litigation.

Under CPLR 3211(a)(1), dismissal is improper when factual issues remain about whether the documentary evidence establishes a lease breach.

7 West Foods, Inc. v. Forty-Seventh Fifth Co. · filed 1985-03-19(a)(1)

Since the nature of the “alterations” and whether the installation of the new signs constituted a substantial violation of the lease raised factual issues, Special Term erroneously granted the motion to dismiss.

Section 3211(a)(1) requires documentary evidence sufficient to disprove the plaintiff’s claim as a matter of law before the complaint can be dismissed.

Fricano v. Fricano · filed 1985-04-22(a)(1)

Prior to serving an answer, defendant moved to dismiss the complaint on the ground that there was a defense founded on documentary evidence which indicated that the action was without merit (see, CPLR 3211 [a] [1]). ... Under these circumstances, we find that the papers before Special Term were insufficient to disprove plaintiff’s claim as a matter of law.

On a motion to dismiss for failure to state a cause of action, the court takes the plaintiff's allegations as true.

Marks v. Marks · filed 1985-09-03(a)(7)

Taking plaintiffs allegations as true, as we must on a motion to dismiss (Sanders v Winship, 57 NY2d 391), the complaint fails to state a cause of action for either abuse of process or prima facie tort.

On a CPLR 3211 motion to dismiss, allegations in an opposition affidavit may supplement the complaint and are assumed true.

Credit Alliance Corp. v. Arthur Andersen & Co · filed 1985-07-02

Plaintiffs’ affidavit was submitted in opposition to Andersen’s motion to dismiss under CPLR 3211. (See, Rovello v Orofino Realty Co., 40 NY2d 633.) The allegations therein, together with those contained in the complaint which they supplement, are, of course, assumed to be true for the purposes of this appeal.

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents conclusively establish a defense.

Paynter v. Vishnia · filed 1985-10-15(a)(1)

Special Term correctly denied those branches of the defendant seller’s motion which sought dismissal on the basis of documentary evidence. No defense was conclusively established by the defendant’s submission of the instant contract of sale, because the plaintiffs’ opposing papers raised substantial issues of fact regarding bad faith on the seller’s part and whether the seller’s waiver of the disputed contract time period left the contract in full effect entitling the buyer to specific performance (see, 4 Weinstein-Korn-Miller, NY Civ Prac || 3211.06; Poteralski v Colombe, 84 AD2d 887, 888; Van Valkenburgh, Nooger & Neville v Hayden Pub. Co., 30 NY2d 34, 45, cert denied 409 US 875; Walsh v Kelly, 49 NY2d 959).

On a motion under CPLR 3211(a)(7), the court assumes the complaint’s allegations are true, construes them favorably to the plaintiff, and gives the plaintiff all favorable inferences.

Kersul v. Skulls Angels Inc. · filed 1985-11-08(a)(7)

On a motion to dismiss for insufficiency, the allegations set ... forth in the complaint must be assumed to be true and construed in the light most favorable to the plaintiff by giving her the benefit of all favorable inferences which can be drawn in the pleading.

Section 3211(a)(1) does not permit dismissal based on documentary evidence when the evidence leaves a factual dispute about control of the premises.

Heindel v. Wein · filed 1985-11-27(a)(1)

Defendants moved pursuant to CPLR 3211 (a) (1) to dismiss the complaint against them on the ground of a defense founded on documentary evidence. ... The papers demonstrate that there is a question of fact regarding who was in control of the premises.

Section 3211 does not permit dismissal based on documentary evidence when the documents do not establish that the claims were resolved.

Geiser v. Geiser · filed 1985-12-05(a)(1)

We disagree with Special Term’s dismissal of the remaining causes of action. Defendant sought dismissal, and the court granted it, on the basis of the documentary evidence. This evidence, i.e., the correspondence of counsel preliminary to the separation agreement and the separation agreement itself, indicates that preliminary negotiations touched upon the matters as to which plaintiff now seeks recovery (counsel fee, home repair loan and tax refund) but that they were not covered in the agreement.

On a motion to dismiss for failure to state a cause of action, the court treats the pleading's allegations as true and gives the pleader every favorable inference.

Halperin v. Salvan · filed 1986-02-25(a)(7)

On a motion to dismiss for insufficiency the allegations contained in the pleadings will be deemed to be true, and the pleader is given every favorable inference that may be drawn from the pleading.

On a motion to dismiss for failure to state a cause of action, an affidavit may preserve an inartfully pleaded but potentially meritorious claim.

Brisimitzakis v. A. B. Machine Works, Inc. · filed 1986-03-03(a)(7)

The petition, together with the petitioner’s affidavit in opposition to the motion, is sufficient to withstand dismissal pursuant to CPLR 3211 (a) (7). "[AJffidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims” (Rovello v Orofino Realty Co., 40 NY2d 633, 635).

Under CPLR 3211, documentary evidence warrants dismissal when it conclusively disproves the plaintiff’s claimed interest.

Marks v. Zucker · filed 1986-03-13(a)(1)

Except as hereinafter indicated, however, we are not persuaded that the documentary evidence justifies dismissal pursuant to CPLR 3211, which of course is governed by a different standard. However, as to three of the partnerships concerning which plaintiff seeks an accounting and on whose behalf she has brought a derivative action, the documentary evidence, embodied in partnership certificates and agreements, appears conclusive that plaintiff at no time had an interest in any of them. Accordingly, the motion to dismiss is granted with regard to those causes of action which rest upon the plaintiff’s having had an interest in South River Company, 22 Park South Company, and 148 West 23rd Street Company.

On a motion to dismiss based on documentary evidence, the plaintiff’s opposition must raise a factual issue about whether the document applies to the claim.

Clearwater Farms, Inc. v. Roosevelt Raceway, Inc. · filed 1986-03-31(a)(1)

The plaintiff’s papers in opposition to the motion to dismiss the complaint were insufficient to raise a triable issue of fact regarding the application of the aforementioned provision of the license agreement to the instant action.

Contractual ambiguity can make dismissal under CPLR 3211 inappropriate when a plausible interpretation would permit recovery.

Farahzad v. Monometrics Corp. · filed 1986-04-21(a)(1), (7)

We conclude, however, contrary to Special Term, that the plaintiff’s cause of action seeking to impose a $15,000 lien on the defendants’ interest in the demised premises should not have been dismissed. The contractual clause providing for a 45-day period within which to secure the existing mortgagee’s consent to the plaintiff’s assumption of the existing mortgage is susceptible to varying interpretations.

When a CPLR 3211(a)(7) motion is not converted to summary judgment, affidavits may be considered to remedy defects in the complaint.

Assael v. Herman · filed 1986-06-09(a)(7)

"[I]n instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint” (Rovello v Orofino Realty Co., 40 NY2d 633, 636). Accordingly, the plaintiffs complaint and affidavit, when read together, state a cause of action which is not violative of the Statute of Frauds.

A deed that establishes a valid defense to an action can support dismissal under CPLR 3211(a)(1) based on documentary evidence.

Dominello v. Dominello · filed 1986-05-27(a)(1)

The deed proffered by the defendant in support of her motion to dismiss constituted a valid defense to the action founded upon documentary evidence (CPLR 3211 [a] [1]).

Section 3211(a)(1) does not support preliminary dismissal when the documentary evidence goes to the merits of the petition.

Town of Woodstock v. Goodson-Todman Enterprises, Ltd. · filed 1986-07-17(a)(1)

The documentary evidence presented, however, is offered to support the town’s position and goes to the merits of the petition to be determined by the court. Rather than a preliminary dismissal, the evidence presented must be reviewed to determine whether the town violated FOIL or the Open Meetings Law.

On a motion to dismiss under CPLR 3211(a)(7), the court must consider evidentiary affidavits submitted in opposition and determine whether the plaintiff has a cause of action.

Yurish v. Sportini · filed 1986-10-20(a)(7)

However, in opposing the sellers’ cross motion, which was made pursuant to CPLR 3211 (a) (7), the plaintiffs submitted evidentiary affidavits, and did not merely rely on the allegations of their complaint. The content of these affidavits should have been considered by the court (see, Rovello v Orofino Realty Co., 40 NY2d 633, 635) so that the question would be not whether the plaintiffs’ complaint states a cause of action, but whether, as a matter of fact, the plaintiffs have a cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275).

To defeat a CPLR 3211 motion based on limitations, plaintiffs must establish a triable issue of fact as to whether continuous treatment tolled the limitations period.

Frias v. City of New York · filed 1986-12-18

This conclusion is reached with the realization that it is plaintiffs’ burden in seeking to defeat this motion to establish the existence of triable issues of fact concerning continuous treatment (Blythe v City of New York, 119 AD2d 615, supra; Grellet v City of New York, 118 AD2d 141, supra). That burden has been sufficiently met.

A motion for summary judgment under CPLR 3211(c) must be denied when material factual issues remain unresolved.

Missett v. Missett · filed 1986-12-30(c)

— Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered April 18, 1986, granting defendant’s motion for summary judgment dismissing the complaint pursuant to CPLR 3211 (a) (7); (c), unanimously reversed, on the law, and the motion denied without costs or disbursements. ... On review of the entire record, we are in agreement that there are factual issues which cannot be summarily resolved.

CPLR 3211 permits a plaintiff to rely on the complaint without submitting affidavits in response to a motion to dismiss, unless the court converts the motion to one for summary judgment.

Bryant Avenue Tenants' Ass'n v. Koch · filed 1987-02-09

However, "CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212 when defendant has made an evidentiary showing that refutes the pleaded cause of action. If plaintiff chooses to stand on his pleading alone, confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he will not be penalized because he has not made an evidentiary showing in support of his complaint.”

A CPLR 3211 motion based on a policy exclusion cannot resolve a disputed factual question about whether the exclusion applies.

State v. INA Underwriters Insurance · filed 1986-10-08(a)(1)

Be that as it may, this court is not in a position to determine as a matter of law that the discharge here was not sudden and accidental. It certainly appears to have been accidental. It could have been sudden.

When affidavits are submitted on a CPLR 3211(a) motion that has not been converted to summary judgment, the court asks whether the plaintiff actually has a cause of action.

Chalos v. Chalos · filed 1987-03-02(a)

Where affidavits are submitted on a motion to dismiss pursuant to CPLR 3211 (a), which, as in the case at bar, had not been converted into a motion for summary judgment, the question to be determined is whether the plaintiff actually has a cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fields v Leeponis, 95 AD2d 822).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it definitively disposes of the claim.

Demas v. 325 West End Avenue Corp. · filed 1987-02-10(a)(1)

The main thrust of this motion, certainly with respect to the first two contractual causes of action and in part with respect to the fifth cause of action based on lack of good faith and fair dealing, was a documentary defense (CPLR 3211 [a] [1]). In order for such a defense to succeed, the proffered documentation must definitively dispose of the claim. This is far from the situation presented by this record.

CPLR 3211(a)(1) and (7) do not permit dismissal when an ambiguous contract leaves significant factual issues unresolved.

Bulatao v. Posada · filed 1987-03-26(a)(1), (7)

Due to the ambiguity of the contract entered into between the parties on July 1, 1983, significant factual issues exist which would preclude dismissal of the complaint pursuant to CPLR 3211 (a) (1) or (7) or CPLR 3212.

CPLR 3211 does not permit dismissal when material questions of fact cannot be resolved on the present record.

Karel v. Clark · filed 1987-04-27

This issue as well as the issue of whether (or how much of) the plaintiff’s claim is time barred involve questions of fact that cannot be resolved on the present record. ... Accordingly, the defendant’s motion was properly denied.

When a motion to dismiss is not converted to a motion for summary judgment under CPLR 3211(c), the petition is entitled to all favorable inferences.

Reisman v. Finnel · filed 1987-05-22(c)

Inasmuch as tenant’s motion to dismiss was not converted to a motion for summary judgment (Rovello v Orofino Realty Co., 40 NY2d 633; CPLR 3211 [c]), the petition, as amplified by petitioners’ notice of nonrenewal incorporated therein, was entitled to all favorable inferences.

On a motion to dismiss for failure to state a cause of action, the court must accept the plaintiff’s allegations as true.

Boothe v. Weiss · filed 1987-10-05(a)(7)

Accepting the plaintiffs allegations as true, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see, Holly v Pennysaver Corp., 98 AD2d 570, 572), we conclude that Special Term did not err in granting the defendant’s motion.

On a CPLR 3211 motion to dismiss, the court must accept the claim’s allegations as true without deciding whether they can be proved at trial.

Koplik v. Arnott · filed 1987-10-26

Furthermore, on a motion to dismiss a claim (CPLR 3211), in contrast to a motion for summary judgment (CPLR 3212), the court must accept as true every allegation in the claim without expressing any opinion about the proponent’s ability to establish the truth of the allegations at trial.

A defense based on documentary evidence warrants dismissal only if it is complete and leaves no genuine triable issue of fact.

Expocorp v. Hyatt Management Corp. · filed 1987-11-02(a)(1)

To warrant dismissal, a defense grounded on documentary evidence must be a complete one, leaving no genuine triable issues of fact (see, Suburban Broadcasting Corp. v RCA Corp., 51 AD2d 785).

On a CPLR 3211 motion to dismiss, the court may consider a discharge summary supplied by the moving party in reply.

Wolff v. State · filed 1988-02-16

The respondent moved to dismiss the claim as untimely pursuant to CPLR 3211. ... In determining the motion, the discharge summary supplied by respondent was considered (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

When a motion to dismiss has not been converted to summary judgment under Section 3211(c), the parties’ affidavits may be examined only for a limited purpose.

Klepner v. Codata Corp. · filed 1988-03-21(c)

Where the motion has not been converted to one for summary judgment (CPLR 3211 [c]), the affidavits submitted by the parties may be examined for a limited purpose only (Rovello v Orofino Realty Co., 40 NY2d 633).

A conflict between an affidavit from another proceeding and a pleading creates an evidentiary issue that does not warrant dismissal under CPLR 3211.

Bizzarro v. Brognano · filed 1988-01-21

In any event, neither the stated ground for the motion nor the papers submitted in support thereof afford a basis for dismissal under CPLR 3211. Any conflict between defendant’s affidavit in an unrelated proceeding and his pleadings herein merely create an evidentiary issue.

Under CPLR 3211(a)(1), surveys that do not conclusively show where allegedly encroaching trees, shrubs, or a fence are located do not warrant dismissal of a trespass claim.

Flatley v. Hartmann · filed 1988-03-07(a)(1)

Since the surveys submitted by each side to this dispute give no indication as to where the allegedly offending trees and shrubs are planted and since those surveys do not demonstrate conclusively where the allegedly offending fence is placed, the Supreme Court properly denied the defendants’ application to dismiss the first cause of action (see, CPLR 3211 [a] [1]; 3212).

Under CPLR 3211(a)(1), documentary evidence establishing that a partnership owns the property can support dismissal of a partner’s partition action.

Greshin v. Sloane · filed 1988-03-21(a)(1)

Clearly, this documentary evidence was sufficient to establish that the law partnership owned the subject premises (see, CPLR 3211 [a] [1]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 16; Gauthier v Gabel, 44 Misc 2d 887, affd 16 NY2d 720; Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873; Dayton v Amity Estates, 24 AD2d 491).

On a CPLR 3211 motion, the court asks whether the complaint states a cause of action, not whether the claim can be proved.

Stambach v. Pierce · filed 1988-04-08

On a motion to dismiss the issue is whether a cause of action has been stated, not whether it can be proved (Amico v Erie County Legislature, 64 Misc 2d 829, revd on other grounds 36 AD2d 415, affd 30 NY2d 729).

A factual dispute over where alleged discrimination occurred cannot be resolved on the papers on a motion to dismiss for lack of subject matter jurisdiction and must await trial.

Iwankow v. Mobil Corp. · filed 1988-04-27(a)(2)

The issue of whether the alleged discriminatory act occurred in New York so as to render the statute applicable is, as was the case in Walston (supra), a factual question that cannot be decided on the papers herein; the parties dispute not only whether his firing was motivated by discriminatory intent, but also the site from which emanated the decision to terminate plaintiff’s position. This issue must await determination at trial.

On a motion to dismiss for failure to state a cause of action, the court treats the plaintiff’s allegations and supporting documents as true and draws favorable inferences for the plaintiff.

Apple Records, Inc. v. Capitol Records, Inc. · filed 1988-05-17(a)(7)

On such a motion, a court is to deem the plaintiff’s allegations, assertions and documentations as true and draw all favorable inferences in plaintiff’s favor.

Section 3211(a)(1) permits dismissal based on documentary evidence only when the document definitively disposes of the claim.

Greenwood Packing Corp. v. Associated Telephone Design, Inc. · filed 1988-05-02(a)(1)

In order to prevail on a defense founded on documentary evidence, the document relied upon must definitively dispose of the plaintiffs claim (see, Reilly v Town of Brookhaven, 34 AD2d 1001; cf., Lebowitz v Mingus, 100 AD2d 816). In this case, the document executed by the plaintiff fails to conclusively demonstrate the defendant’s acceptance of the plaintiffs terms. Aside from the apparently minor omission of the order and installation dates, the document remains unsigned by the defendant and nowhere on its face is "approval” by the "home office” indicated. The Supreme Court therefore erred in dismissing the complaint pursuant to CPLR 3211 (a) (1), although dismissal of the plaintiffs causes of action for attorney’s fees and for punitive damages was otherwise appropriate (CPLR 3212 [b]).

Section 3211(a)(1) permits dismissal when the parties’ agreement raises no triable issue of fact.

Hoffman v. Eisenberg · filed 1988-05-02(a)(1)

A review of the record shows that no triable issues of fact were raised pertaining to the agreement between the parties and that this action was properly dismissed pursuant to CPLR 3211 (a) (1).

On a motion to dismiss for failure to state a cause of action, the court accepts alleged facts as true and asks whether they fit a cognizable legal theory, but need not accept conclusory statements.

Vella v. United Cerebral Palsy of New York City, Inc. · filed 1988-08-26(a)(7)

On a motion to dismiss a complaint for legal insufficiency, the court accepts the facts alleged as true and simply determines whether the facts alleged fit within any cognizable legal theory. ... However, the court is not bound to accept conclusory statements as accurate.

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents resolve all factual issues as a matter of law.

Glockhurst Corp. N. V. v. Schechter · filed 1988-10-18(a)(1)

A defense founded upon documentary evidence is not dispositive unless the documents submitted resolve all of the factual issues as a matter of law. ... Accordingly, that branch of the motion seeking an order pursuant to CPLR 3211 (a) (1) dismissing the first, third and fourth causes of action as against Schechter individually, based upon documentary evidence, is denied.

On a motion to dismiss for failure to state a cause of action, a court may consider a plaintiff’s affidavit to supply details missing from the complaint and sustain the pleading.

Noto v. St. Vincent's Hospital & Medical Center · filed 1988-12-28(a)(7)

Moreover, where there is a deficiency on the face of a complaint due to a lack of detailed pleadings, it is appropriate to consider the details of a plaintiff’s affidavit, as was submitted here, for the limited purpose of sustaining a pleading against a motion to dismiss under CPLR 3211 (a) (7) (see, Rovello v Orofino Realty Co., 40 NY2d 633, 636; Ackerman v Vertical Club Corp., 94 AD2d 665).

On a motion to dismiss under CPLR 3211(a)(5), conflicting proof about when a summons was delivered to the sheriff requires a hearing if that date determines the validity of service.

Quality King Distributors v. Krinsky Enterprises, Inc. · filed 1989-02-21(a)(5)

Since — as the plaintiff concedes — the validity of. service upon the appellant is dependent upon the precise date on which the summons was delivered to the Suffolk County Sheriff (see, CPLR 203 [b] [5]), the discrepancy between the date stamped on the summons by the Sheriffs office and the documentary proof offered by the plaintiff necessitates a hearing at which "the various proponents of the operative facts can be subjected to cross-examination” (Vitale v Gelfand, 110 AD2d 696).

Section 3211 does not permit the court to resolve disputed facts about annual rent registration on the submitted motion papers; those issues must await trial.

Dabalsa v. Crino · filed 1989-03-06

The issues of whether defendants timely filed or, in fact, ever filed the annual rent registration with the DHCR cannot be decided upon the submitted papers pursuant to a motion made under CPLR 3211 and should await a trial.

On a motion to dismiss under CPLR 3211(a)(7), the court need not analyze evidentiary matters better suited to summary judgment.

Creative Trading Co. v. Larkin-Pluznick-Larkin, Inc. · filed 1989-03-21(a)(7)

Having complied with our directive, there is no need to analyze, as the dissent does, the possible evidentiary aspects which are more attuned to a motion for summary judgment than a motion to dismiss pursuant to CPLR 3211 (a) (7).

Under CPLR 3211(a)(7), a court may consider allegations in the plaintiff's affidavit along with the complaint when deciding whether it states a cause of action.

Lipset v. Lipset · filed 1989-05-22(a)(7)

The averments in the complaint, when supplemented with the allegations set forth in the plaintiffs affidavit (see, Rovello v Oro fino Realty Co., 40 NY2d 633), clearly indicate that the plaintiff has no cause of action for a divorce based upon cruel and inhuman treatment.

A CPLR 3211(a)(5) motion based on the Statute of Frauds cannot resolve a factual dispute over whether partial performance refers to the alleged oral contract.

Spodek v. Riskin · filed 1989-05-01(a)(5)

Where a triable issue of fact exists as to referability, dismissal on motion as a matter of law is, of course, improper.

A motion to dismiss based on documentary evidence succeeds only if the document definitively disposes of the plaintiff’s claim.

Juliano v. McEntee · filed 1989-05-15(a)(1)

In order to prevail on a motion to dismiss based on documentary evidence, the document relied upon must definitively dispose of the plaintiff’s claim (see, CPLR 3211 [a] [1]; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303, 305; Reilly v Town of Brookhaven, 34 AD2d 1001).

A dispositive motion under section 3211(a)(7) need not be treated as a summary judgment motion, so the plaintiff need not marshal proof of bad faith or malice.

Kolker v. St. Francis Hospital · filed 1989-11-27(a)(7)

treated as a summary judgment motion, however, because the CPLR 3211 (a) (7) application is dispositive and consequently there is no need for the plaintiff to marshall proof of bad faith or malice.

Section 3211 permits a court to grant partial summary judgment on a motion to dismiss when no factual questions remain and both parties have fully briefed and argued the legal issues.

Rapid-American Corp. v. Olympic Tower Associates · filed 1990-01-25

The court, additionally, possessed the authority to grant partial summary judgment herein on a motion to dismiss pursuant to CPLR 3211 since the instant action involves no questions of fact but only legal issues fully briefed and argued by both parties (Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

Section 3211(a)(7) permits a court to consider the parties’ affidavits when deciding whether a complaint states a viable cause of action.

Pevensey Press, Ltd. v. Prentice-Hall, Inc. · filed 1990-05-24(a)(7)

Finally, in view of the fact that neither the complaint nor plaintiff’s affidavits in opposition to the dismissal motions alleged sales by defendant Prentice-Hall in the restricted geographic areas, and, in fact, conceded that defendant Prentice-Hall had sold the books only in the United States, the IAS court did not abuse its discretion in considering the parties’ affidavits in concluding that the plaintiff had failed to state a viable cause of action.

A court may dismiss a complaint when an affirmative defense of ratification is obvious from the pleadings and papers before it.

Stacom v. Wunsch · filed 1990-06-12(a)(7)

Although ratification is an affirmative defense, which defendant has the burden of proving, the IAS court properly dismissed the various causes of action on the instant motion since the issue of ratification was obvious in the pleadings and ... papers before the court.

On a motion under CPLR 3211(a)(7), the court may review a submitted affidavit to determine whether the plaintiff has a cause of action.

Quail Ridge Associates v. Chemical Bank · filed 1990-06-28(a)(7)

On a motion to dismiss brought pursuant to CPLR 3211 (a) (7), the scope of our review is limited. ... Thus, to determine if any cause of action cognizable at law can be discerned from the allegations set forth in plaintiff’s second through tenth causes of action, we shall also review the affidavit submitted by Jack Heller, plaintiff’s president.

On a CPLR 3211 motion challenging a delayed insurance disclaimer, the insurer must offer admissible evidence raising a triable issue about a reasonable justification for the delay.

Interboro Mutual Indemnity Insurance v. Gatterdum · filed 1990-07-19

Accordingly, in response to defendants’ motion, pursuant to both CPLR 3211 and 3212, it was incumbent upon plaintiff to come forward with evidentiary proof in admissible form to show at least a triable issue of fact as to the existence of a reasonable justification for the delay.

On a motion to dismiss under section 3211(a)(7), the plaintiff receives every favorable inference reasonably drawn from the pleadings.

Stambovsky v. Ackley · filed 1991-07-18(a)(7)

For the purposes of the instant motion to dismiss the action pursuant to CPLR 3211 (a) (7), plaintiff is entitled to every favorable inference which may reasonably be drawn from the pleadings ... specifically, in this instance, that he met his obligation to conduct an inspection of the premises and a search of available public records with respect ... to title.

On a motion under CPLR 3211(a)(7), a plaintiff may use an affidavit to supply missing factual detail for the limited purpose of sustaining the complaint.

Components Direct, Inc. v. European American Bank & Trust Co. · filed 1991-07-22(a)(7)

Any deficiency on the face of the complaint as to lack of details in pleading the facts and circumstances relied upon may be cured by affidavit submitted by the plaintiff, resort to which is proper for the limited purpose of sustaining a pleading against a motion to dismiss under CPLR 3211 (a) (7) (see, Rovello v Orofino Realty Co., 40 NY2d 633; Ackerman v Vertical Club Corp., 94 AD2d 665).

On a motion to dismiss under CPLR 3211(a)(7), the court must accept the plaintiff’s allegations as true and draw reasonable inferences in the pleader’s favor.

Prudential Insurance v. Dewey · filed 1991-08-15(a)(7)

Since defendant Dewey has moved to dismiss, the law has long been settled that a court, when deciding such a motion, must consider the plaintiffs allegations, asserted in the complaint submitted in opposition to that motion, "as true and resolve all inferences which reasonably flow therefrom in favor of the pleader” (Sanders v Winship, 57 NY2d 391, 394 [1982]; see also, Kaufman v Kaufman, 135 AD2d 786, 787 [1987]; Apple Records v Capitol Records, 137 AD2d 50, 59 [1st Dept 1988]).

On a motion under section 3211(a)(7), the pleadings and motion papers must provide adequate notice and a basis before the court orders an accounting the plaintiff did not demand.

Related-Falls Bridge Limited Partnership v. Falls Bridge Plaza Associates · filed 1991-11-07(a)(7)

Moreover, inasmuch as the complaint seeks merely money damages and declaratory relief upon the purported promissory note(s) and guarantees and plaintiff has made no demand for an accounting, neither the pleadings nor the papers submitted in support of this CPLR 3211 (a) (7) motion provide adequate notice or a basis to order an accounting in absence of any demand by plaintiff.

On a CPLR 3211 motion, the court accepts the complaint’s allegations as true and draws reasonable inferences in the pleader’s favor.

Land-Site Contracting Corp. v. Marine Midland Bank, N.A. · filed 1991-11-21

In our view the conduct of the parties and the surrounding circumstances in this case are sufficient to establish a contractual relationship between Land-Site and Marine, particularly as we are dealing with a CPLR 3211 motion, wherein we accept the allegations in the complaint as true, and we "resolve all inferences which reasonably flow therefrom in favor of the pleader.”

On a motion to dismiss for failure to state a cause of action, the court does not consider the merits of factual disputes.

Peck v. Heidrick & Struggles, Inc. · filed 1991-11-21(a)(7)

Defendant denies having entered into the alleged termination agreement, and asserts that it has a discretionary policy with respect to bonuses, but this simply raises an issue of fact, the merits of which are not to be considered on a CPLR 3211 (a) (7) motion.

On a motion to dismiss under § 3211(a)(7), the court must accept the plaintiff’s allegations as true and draw reasonable inferences in the pleader’s favor.

Reform Education Financing Inequities Today v. Cuomo · filed 1991-12-12(a)(7)

On the State’s motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept the plaintiffs’ allegations as true and must "resolve all inferences which reasonably flow therefrom in favor of the pleader” (Sanders v Winship, 57 NY2d 391, 394).

On a CPLR 3211(a)(2) motion, factual allegations must be accepted as true and the complaint liberally construed in the pleader’s favor.

Anguita v. Koch · filed 1992-01-16(a)(2)

Since the motion is brought pursuant to CPLR 3211 (a) (2), the factual averments must be accepted as true and the complaint liberally construed in the pleader’s favor.

On a motion to dismiss under CPLR 3211(a)(7), the court must treat every complaint allegation as true and draw all inferences in the plaintiff’s favor, regardless of whether the plaintiff will ultimately prevail.

Gay Teachers Ass'n v. Board of Education of the City School District · filed 1992-05-12(a)(7)

In light of the fact that in deciding a CPLR 3211 (a) (7) motion to dismiss, we are "required to view every allegation of the complaint as true and resolve all inferences in favor of the plaintiff regardless of whether the plaintiff will ultimately prevail on the merits” (Grand Realty Co. v City of White Plains, 125 AD2d 639), and given the current state of the law regarding discrimination in this area of family relationships (see, Braschi v Stahl Assocs. Co., 74 NY2d 201), we find that the trial court properly denied the municipal defendants’ motion to dismiss.