N.Y. C.P.L.R. § 3211

On a CPLR 3211 motion, the court may consider affidavits and other evidence-bearing papers regardless of the motion’s ground.

Huzar v. State · filed 1992-11-05

"Affidavits, depositions, documentary proof, admissions, letters, and any other papers or proof having an evidentiary impact in the particular situation may be considered on any CPLR 3211 motion regardless of its ground.”

On a motion to dismiss, the court may determine which portions of a claim are time barred when counsel request it and the issue rests on undisputed facts.

Ackerman v. Price Waterhouse · filed 1992-11-10(a)(7)

Despite the general precept that a motion to dismiss should not be used to prune a cause of action if any portion of the cause of action is valid, counsel have requested that the court determine, to the extent permitted by the record, which claims are time barred in order to limit discovery and provide some guidance as to a possible class action. Given that these issues are issues of law based upon undisputed facts, for reasons detailed more fully below, the court will allow counsel to chart their procedural course on this motion to dismiss and will address, as a matter of law, the portion of the claims which are not stale.

On a motion to dismiss under CPLR 3211(a)(7), the court may consider documentary evidence and need not accept factual allegations flatly contradicted by it.

WFB Telecommunications, Inc. v. NYNEX Corp. · filed 1992-12-01(a)(7)

We reject plaintiffs’ ... argument that such evidence may not be considered in support of a motion to dismiss made under CPLR 3211 (a) (7).

On a Section 3211 motion, the court gives the plaintiff every favorable inference from the allegations and denies dismissal if they state a cause of action.

Belle v. New York City Transit Authority · filed 1993-02-18

Furthermore, "a complaint should not be dismissed on pleadings so long as, giving plaintiff the benefit of every possible favorable inference contained in [his or her] allegations, a cause of action exists.”

Affidavits submitted in response to a motion to dismiss can remedy defects in a complaint.

McGuinness v. Standard Drywall Corp. · filed 1993-05-20(a)(7)

Nor should the complaint be dismissed for failure to state a cause of action for actual fraud under Debtor and Creditor Law § 276, since plaintiffs’ affidavits submitted in response to the motion to dismiss remedied any defects in their complaint (Rovello v Orofino Realty Co., 40 NY2d 633).

Section 3211(c) permits either party to submit evidence on a motion to dismiss and allows the court to consider unpleaded facts when deciding whether to permit repleading.

Sanders v. Rosen · filed 1993-06-29(c)

CPLR 3211 (c) permits either party to submit evidence on the motion, and the court may consider unpleaded facts set forth in the papers to determine whether on a motion to dismiss there should be permission to replead.

Section 3211(c) permits evidentiary material on a motion to dismiss, but a newspaper article containing double hearsay does not qualify.

Bakery Salvage Corp. v. Maple Leaf Foods, Inc. · filed 1993-07-16(c)

The CPLR contemplates submission of evidentiary material on a motion to dismiss (CPLR 3211 [c]), and the news article furnished by plaintiff does not qualify.

Section 3211(c) permits a court to consider the plaintiff's opposing affidavits when assessing a motion to dismiss.

Star Contracting Co. v. McDonald's Corp. · filed 1994-02-28(c)

In reaching this conclusion the trial court properly looked to the plaintiffs opposing affidavits (see, CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635).

Section 3211 permits a court to consider a defendant’s documentary evidence when deciding whether a complaint pleads a cognizable cause of action.

Linnane v. Lanzellotto · filed 1994-03-07(c)

The plaintiff’s contention that the trial court improperly looked to the defendants’ documentary evidence in order to determine whether or not the complaint pleaded a cognizable cause of action is without merit (see, CPLR 3211 [cl; see also, ... Rovello v Orofino Realty Co., 40 NY2d 633, 635).

On a motion to dismiss for failure to state a cause of action, the court assumes the pleading’s allegations are true, draws reasonable favorable inferences, and may consider affidavits supplementing inadequately pleaded material.

Mulder v. Donaldson, Lufkin & Jenrette · filed 1994-05-16(a)(7)

In determining a motion to dismiss a pleading, the court assumes the allegations of the pleading to be true (Krantz v Garmise, 13 AD2d 426 [1st Dept]). The opposing party gets the benefit of any favorable inference which may reasonably be drawn, and even inadequately pleaded material can be supplemented by affidavits (Rovello v Orofino Realty Co., 40 NY2d 633).

On a CPLR 3211(a)(7) motion, pleaded facts are presumed true and receive every favorable inference.

Caniglia v. Chicago Tribune-New York News Syndicate Inc. · filed 1994-05-26(a)(7)

On a motion addressed to the sufficiency of a complaint pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference.

On a CPLR 3211 motion, contrary factual allegations in a defendant’s affidavits do not warrant dismissal of a sufficiently pleaded claim.

Health-Loom Corp. v. Soho Plaza Corp. · filed 1994-11-03

Contrary factual allegations in the defendants-appellants’ affidavits in support of their motion "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading” (Rovellow v Orofino Realty Co., 40 NY2d 633, 635) and do not warrant CPLR 3211 dismissal (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 318-319).

On a motion to dismiss for failure to state a cause of action, affidavits may remedy defects in the complaint and supplement its allegations.

Mulder v. Donaldson, Lufkin & Jenrette · filed 1995-03-07(a)(7)

While defendant DU states that the court should disregard evidentiary affidavits offered by the parties and decide the motion solely on the allegations in the complaint, it is well settled that affidavits may be used to remedy defects in the complaint and supplement its allegations upon a motion to dismiss (see, Arrington v New York Times Co., 55 NY2d 433, 442; Rovello v Orofino Realty Co., 40 NY2d 633).

On an unconverted motion to dismiss under CPLR 3211(a)(7), the complaint and a supplemental affidavit receive their most favorable intendment.

Maffei v. Kolaeton Industry, Inc. · filed 1995-03-14(a)(7)

In considering this motion, which has not been converted to one for summary judgment, the complaint combined with plaintiff’s supplemental affidavit "must be given their most ...favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442 [1982]).

A motion under CPLR 3211(a)(5) asserting payment does not warrant dismissal before discovery when it relies on hearsay newspaper articles of dubious reliability.

Love v. Spector · filed 1995-05-30(a)(5)

The court may not dismiss the complaint before any discovery has taken place on the ground that the plaintiff has already been paid for her performances as a session singer (see, CPLR 3211 [a] [5]), based upon hearsay newspaper articles of dubious reliability.

Section 3211(a)(7) does not permit the court to resolve a factual issue about whether a defendant unjustly retained a benefit alleged in the complaint.

Lake Erie Distributors, Inc. v. Martlet Importing Co. · filed 1995-11-15(a)(7)

The resolution of this issue is not one that may be properly decided on a motion to dismiss under CPLR 3211 (see, Tarrytown House Condominiums v Hainje, supra; Kearns v Mino, 83 AD2d 606).

On a CPLR 3211 motion, the court gives the complaint all favorable inferences.

Rothstein v. Tennessee Gas Pipeline Co. · filed 1995-11-30

Giving the complaint on this CPLR 3211 motion all favorable inferences, we apply the toxic tort discovery statute (L 1986, ch 682; CPLR 214-c) and agree with the Appellate Division that the subject causes of action are not time-barred.

On a motion to dismiss under CPLR 3211(a)(7), the court does not resolve questions of credibility.

Haydock v. Haydock · filed 1995-12-18(a)(7)

The wife’s denial that she is having an extramarital affair presents a question of credibility which is not properly before us on this motion to dismiss pursuant to CPLR 3211.

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.

Wallice v. Waterpointe at Oakdale Shores, Inc. · filed 1995-12-18(a)(7)

In considering a 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; see also, Leon v Martinez, 84 NY2d 83, 87; Guggenheimer v Ginzburg, 43 NY2d 268, 275; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Bovino v Village of Wappingers Falls, 215 AD2d 619).

On a motion to dismiss for failure to state a claim, the court views the alleged facts in the plaintiff’s favor.

DeFilippo v. Xerox Corp. · filed 1996-01-11(a)(7)

Viewing, as we must, the operative facts in a light most favorable to plaintiff ... we find that Supreme Court properly dismissed the intentional infliction of emotional distress cause of action.

On a motion to dismiss for failure to state a cause of action, pleadings are liberally construed, alleged facts are accepted as true, and plaintiffs receive every favorable inference.

Butler v. Delaware Otsego Corp. · filed 1996-03-07(a)(7)

It is well settled that in response to a motion pursuant to CPLR 3211, pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (see, Leon v Martinez, 84 NY2d 83, 87; Franco v English, 210 AD2d 630, 632; see also, CPLR 3026); we are required to determine "only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, supra, at 87-88).

On a CPLR 3211 motion to dismiss, the court presumes the complaint’s factual allegations true and draws reasonable inferences for the nonmoving party.

Zaccaro v. Parker · filed 1996-06-10

Because defendant seeks to dismiss plaintiff’s complaint pursuant to CPLR 3211, the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.

When affidavits are submitted on a motion to dismiss under § 3211(a)(7), the question is whether the plaintiff has a cause of action, not merely whether one has been stated.

Rocco v. Town of Smith-Town · filed 1996-07-12(a)(7)

Where, as here, affidavits are ...submitted in support of, and in opposition to, a motion to dismiss made pursuant to CPLR 3211 (a) (7), the issue is whether plaintiffs have a cause of action, not whether one has been stated (see, Leon v Martinez, 84 NY2d 83, 88; Rovello v Orofino Realty Co., 40 NY2d 633, 636).

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

Tinter v. Sack · filed 1996-08-29(a)(5)

We begin with the well-settled proposition that on a motion to dismiss a cause of action on the pleading itself, the material allegations of the complaint are deemed to be true and the plaintiff must be given the benefit of every favorable inference to be derived therefrom (Rovello v Orofino Realty Co., 40 NY2d 633; Arrington v New York Times Co., 55 NY2d 433, 442, cert denied 459 US 1146; Harris v City of New York, 147 AD2d 186, 189).

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

Schaus v. Marine Midland Bank, N. A. · filed 1996-11-08(a)(7)

On a motion to dismiss pursuant to CPLR 3211, the judicial function "is to 'determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318, quoting Leon v Martinez, 84 NY2d 83, 87-88).

On an unconverted CPLR 3211 motion, the court asks whether the plaintiff has alleged a cause of action and gives the plaintiff every possible favorable inference.

Hewlett v. Staff · filed 1997-01-09

Inasmuch as the motions sought dismissal of the complaint pursuant to CPLR 3211 and were not converted to summary judgment motions {see, CPLR 3211 [c]), the issue is whether plaintiff has alleged a cause of action, giving her the benefit of every possible favorable inference {see, Rovello v Orofino Realty Co., 40 NY2d 633).

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

O'Brien v. Jack LaLanne Fitness Centers, Inc. · filed 1997-03-31

On a motion to dismiss a complaint pursuant to CPLR 3211, 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, 87-88).

On a CPLR 3211 motion, the court may consider submitted evidence, but should not dismiss the complaint unless the defendant shows that an alleged material fact is false and no significant dispute exists about it.

Williams v. New York City Housing Authority · filed 1997-04-14

Where, as here, evidentiary material is submitted on a CPLR 3211 motion, it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates that a material fact alleged by the plaintiff to be true "is not a fact at all” and that "no significant dispute exists regarding it”, the complaint should not be dismissed (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275).

On a motion to dismiss under CPLR 3211(a)(7), courts liberally construe the complaint in the plaintiff’s favor.

Russo Securities, Inc. v. Meltzer, Lippe, Goldstein, Wolf, Schlissel & Sazaer · filed 1997-10-14(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading must be liberally construed in the light most favorable to the plaintiff.

On a preanswer motion to dismiss under CPLR 3211(a)(7), a complaint consisting of legal conclusions without factual allegations is not entitled to favorable inferences.

Kamhi v. Tay · filed 1997-11-20(a)(7)

The complaint, replete with legal conclusions and devoid of any factual allegation of the underlying wrongful conduct for which plaintiff seeks to hold defendants vicariously liable, is not entitled to the benefit of the favorable inferences usually accorded on a preanswer motion to dismiss (see, Stuart Lipsky, P. C. v Price, 215 AD2d 102, 103).

On a motion to dismiss for failure to state a cause of action, the court may consider evidentiary submissions to assess whether a material fact alleged in the complaint is viable.

Adams v. O'Connor · filed 1997-12-29(a)(7)

Furthermore, the Supreme Court properly considered the evidentiary submissions to assess the viability of the complaint, and inasmuch as the defendants’ evidence demonstrated that a material fact alleged by the plaintiffs to be true “[was] not a fact at all” and that “no significant dispute exist [ed] regarding it”, the complaint was properly dismissed (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Rovello v Orofino Realty Co., supra).

On a motion to dismiss for failure to state a cause of action, the court may consider evidence that could properly be considered on a motion for summary judgment.

Tarzia v. Brookhaven National Laboratory · filed 1998-02-23(a)(7)

In assessing a motion to dismiss for failure to state a cause of action (see, CPLR 3211 [a] [7]) the court may consider any evidence that could properly be considered on a motion for summary judgment (see, CPLR 3211 [c]; Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 634).

On a motion challenging the legal sufficiency of a complaint, the court may consider evidentiary submissions that flatly contradict conclusory allegations.

John Street Leasehold L. L. C. v. Chemical Bank · filed 1998-03-05(a)(7)

This conclusion, sustainable upon the pleadings alone, is additionally supported by defendant’s evidentiary submissions, which are properly considered on the present motion challenging legal sufficiency ... inasmuch as they flatly contradict plaintiffs conclusory allegations that defendant exerted influence over the lead bank with respect to the lead bank’s determination to reject plaintiffs request for a waiver of the “call provision” of the mortgage.

On motions to dismiss under CPLR 3211(a)(1) and (7), courts must accept the pleaded facts as true rather than make factual findings.

Wiener v. Lazard Freres & Co. · filed 1998-04-16(a)(1), (a)(7)

As plaintiffs correctly argue in the first instance, the court, in reaching these conclusions on motions to dismiss under CPLR 3211 (a) (1) and (7), made improper findings of fact.

On a motion to dismiss under CPLR 3211 (a) (7), the plaintiff receives the benefit of all favorable inferences drawn from the pleading.

Huntington Hospital v. Anron Heating & Air Conditioning, Inc. · filed 1998-05-26(a)(7)

It is well settled that upon a motion pursuant to CPLR 3211 (a) (7) to dismiss, the plaintiff is to be accorded “the benefit of all favorable inferences which may be drawn from [the] pleading” (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318).

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

Beltrone v. General Schuyler & Co. · filed 1998-07-02(a)(7)

We are obliged to accept these allegations as true and afford them a liberal interpretation along with giving the plaintiff the benefit of every favorable inference (see, Leon v Martinez, 84 NY2d 83, 87).

On a motion to dismiss under subsection (a)(7), when the movant submits evidence outside the pleadings, the court may assess whether the claimant actually has a cause of action without assuming the pleaded allegations are true.

Henderson v. United Parcel Service, Inc. · filed 1998-07-23(a)(7)

Further, even though the motion on appeal is a CPLR 3211 motion, we note that: “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 (a) (7)] need not assume the truthfulness of the pleaded allegations * * * Instead, ‘the criterion is whether the proponent of the pleading [actually] has a cause of action, not whether he has [properly] stated one’ ”.

Opposition affidavits that directly contradict a verified complaint’s allegations are insufficient to avoid dismissal.

LeBreton v. Weiss · filed 1998-12-03

To the extent that the opposition affidavits submitted by plaintiff and the two individuals to whom the alleged defamatory statements were published allege that the individuals did not make their inquiries at plaintiffs direction, such affidavits were directly contradictory of the allegations of plaintiffs verified complaint ... and, as such, insufficient to avoid the complaint’s dismissal (see, e.g., American Realty Co. v 64 B Venture, 176 AD2d 226, 226-227).

On a CPLR 3211 motion to dismiss, the court may not consider the movant’s factual allegations.

Blaine v. Community Health Plan · filed 1998-12-15

The court may not consider CHP’s factual allegations as part of this motion to dismiss, but even if this were a motion for summary judgment, it is distinguishable from the cases relied on by CHP.

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

Port Authority v. Evergreen International Aviation, Inc. · filed 1999-01-22

When a motion is made pursuant to CPLR 3211, the court assumes the truth of the allegations of the complaint.

When a court considers extrinsic evidence on a CPLR 3211 motion, it asks whether the plaintiff has a cause of action, rather than whether the complaint states one.

Biondi v. Beekman Hill House Apartment Corp. · filed 1999-05-27

Where extrinsic evidence is used, the standard of review under a CPLR 3211 motion is “whether the proponent of the pleading has a cause of action, not whether he has stated one.”

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true and gives them every possible favorable inference.

Kenneth D. Laub & Co. v. Bear Stearns Companies, Inc. · filed 1999-06-08

Accepting that and the other allegations of breach as true, and affording them every possible favorable inference, as we must on a motion to dismiss pursuant to CPLR 3211 (see, Leon v Martinez, 84 NY2d 83, 87-88), the complaint sufficiently states a claim for breach of contract.

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

Niagara Mohawk Power Corp. v. Freed · filed 1999-10-01

On a CPLR 3211 motion, we “take the allegations [in the complaint] as true and resolve all inferences which reasonably flow therefrom in favor of the pleader” (Cron v Hargro Fabrics, 91 NY2d 362, 366; see, Pharmhealth Infusion v Rohm Servs. Corp. [appeal No. 1], 249 AD2d 950).

When the moving party offers evidentiary material on a motion to dismiss for failure to state a cause of action, the court determines whether the pleading’s proponent has a cause of action, rather than merely whether she has stated one.

Goldhamer v. Geller · filed 1999-10-25(a)(7)

Where, as here, the moving party offers evidentiary material, the court must determine whether the proponent of the pleading has a cause of action, not whether she has stated one (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Meyer v Guinta, supra; Doria v Masucci, 230 AD2d 764).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s factual allegations as true and draws reasonable inferences in the pleader’s favor.

Rabouin v. Metropolitan Life Insurance · filed 1999-11-09(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must take the factual allegations of the complaint as true, and resolve all inferences which reasonably flow therefrom in favor of the pleader.

A plaintiff opposing dismissal on limitations grounds must submit admissible evidence to show a different accrual date.

Stamp v. Schenk · filed 1999-12-30(c)

Plaintiff failed to submit any evidence in admissible form tending to show any other accrual date (see, CPLR 3211 [c]).

On a motion to dismiss for failure to state a cause of action, a court may consider evidence showing that a pleaded material fact is false and that no significant dispute exists about it.

Mayerhoff v. Timenides · filed 2000-02-07(a)(7)

Although a court may not treat a motion to dismiss as a motion for summary judgment without giving notice to the parties (see, Mihlovan v Grozavu, 72 NY2d 506, 508; Brabender v Incorporated Vil. of Northport, 222 AD2d 477), it may nevertheless consider evidentiary submissions to assess the viability of a complaint where such evidence demonstrates that a material fact alleged by a plaintiff to be true is “not a fact at all”, and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see, Adams v O’Connor, 245 AD2d 537; CD Music Co. v Bassline, Inc., 242 AD2d 654; Jacobs v Haber, 232 AD2d 372).

On a CPLR 3211 motion to dismiss, the court accepts the complaint as true and gives its allegations every possible favorable inference.

Sabater v. Lead Industries Ass'n · filed 2000-02-10

It is well established that in considering a motion to dismiss the court must accept the complaint as true and give the complaint every possible favorable inference in construing its allegations.

On a motion under CPLR 3211 (a) (7), the court may consider the plaintiff’s affidavits to remedy defects in the complaint.

Nathan W. Drage, P. C. v. First Concord Securities, Ltd. · filed 2000-02-29(a)(7)

Furthermore, in assessing a motion under CPLR 3211 (a) (7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint.

On a CPLR 3211 motion to dismiss a complaint, the court takes the allegations as true and resolves reasonable inferences in the pleader’s favor.

Freedman v. Pearlman · filed 2000-04-18

On a CPLR 3211 motion made against a complaint, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (see, Sanders v Winship, 57 NY2d 391, 394).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s factual allegations as true and gives the pleading a liberal construction and the plaintiff every favorable inference.

Henness v. Hunt · filed 2000-05-18

First, we note that when considering a motion to dismiss pursuant to CPLR 3211, a court must accept facts alleged in the complaint as true (see, Maynor v Pellegrino, 226 AD2d 883, 884-885). The court must also afford the pleading a liberal construction giving the plaintiff every favorable inference to determine “ ‘whether the facts as alleged fit within any cognizable theory’ ” (Rickson v Town of Schuyler Falls, 263 AD2d 863, 864, quoting Leon v Martinez, 84 NY2d 83, 87-88).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true and gives them every favorable inference.

Stein v. 92nd Street YM-YWHA, Inc. · filed 2000-06-29

We affirm the denial of defendant’s motion insofar as it sought dismissal of plaintiffs’ discrimination claims, other than the claims for retaliation, since the allegations of the complaint, when accepted as true and given the benefit of every favorable inference as they must be on a motion to dismiss pursuant to CPLR 3211 (see, e.g., Leon v Martinez, 84 NY2d 83), adequately state claims for defendant’s denial of the use of its facilities and for its denial of accommodations, advantages or privileges to the infant plaintiff by reason of her disability (see, Executive Law § 296 [4], [2] [a]; see also, Administrative Code of City of NY § 8-107 [4] [a]).

A motion to dismiss addressed to the pleadings cannot resolve a factual dispute over the amount of Lien Law trust funds.

Bronx Store Equipment Co. v. Westbury Brooklyn Associates, L.P. · filed 2001-02-13(a)(7)

The motion to dismiss was also correctly denied as to the eighth cause of action, for alleged diversion of Lien Law trust funds, since the amount of trust funds that existed is an issue of fact that cannot be determined on a motion addressed to the pleadings.

CPLR 3211 permits a plaintiff to submit affidavits on a motion to dismiss but does not require them on penalty of dismissal.

Figueroa v. Luna · filed 2001-03-08

The distinction between the two forms of motion is that “ ‘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’ ” (Rich v Lefkovits, 56 NY2d 276, 282, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635).

On a motion to dismiss, the court must accept the alleged facts as true and give the plaintiff every favorable inference.

Vopelak v. Tedeschi · filed 2001-03-15

In determining a motion to dismiss {see, CPLR 3211), the court is bound to accept the facts alleged as true and afford plaintiff every favorable inference (see, Henness v Hunt, 272 AD2d 756).

A contract does not warrant dismissal of a breach of contract claim under CPLR 3211(a)(1) and (7) unless it unambiguously contradicts the complaint’s allegations.

L'Archeveque v. Maimonides Medical Center · filed 2001-04-16(a)(1), (a)(7)

The defendant failed to establish that the contract at issue unambiguously contradicted the plaintiffs allegations in her complaint.

On a motion to dismiss under CPLR 3211(a)(7), the court does not resolve factual disputes over whether allegedly taken materials are confidential.

Bender Insurance Agency, Inc. v. Treiber Insurance Agency, Inc. · filed 2001-05-14(a)(7)

Such a conclusion would have required a factual inquiry not implicated on a motion to dismiss pursuant to CPLR 3211 (a) (7) (cf., Levine v Bochner, 132 AD2d 532).

On a CPLR 3211 motion to dismiss, the court views the allegations in the light most favorable to the non-moving party when deciding whether they state a cause of action.

Elie v. St. Barnabas Hospital · filed 2001-05-31

These allegations viewed as they must be on a CPLR 3211 motion to dismiss, in the light most favorable to the non-moving party (Leon v Martinez, 84 NY2d 83, 87-88; Wiener v Lazard Freres & Co., 241 AD2d 114, 120), adequately state a cause of action for negligence against St. Barnabas in each of the five complaints under review.

On a CPLR 3211 motion to dismiss, the court views the pleaded facts in the plaintiff’s favor when deciding whether the claim can proceed.

Arnav Industries, Inc. Retirement Trust v. Brown · filed 2001-06-05

Viewing plaintiffs’ asserted reliance in a light most favorable to the plaintiffs, as we must at this stage of the proceeding, we cannot conclude that said reliance negated plaintiff’s claim of legal malpractice.

On a motion to dismiss for failure to state a cause of action, the court may consider the plaintiff’s affidavits to determine whether they cure pleading defects or conclusively show that no cause of action exists.

Fada Industries, Inc. v. Falchi Building Co. · filed 2001-06-22(a)(7)

In assessing a motion under CPLR 3211 (a) (7), a court properly may freely consider affidavits submitted by the plaintiff for the limited purpose of ascertaining whether they may remedy defects in the complaint or they establish conclusively that plaintiff has no cause of action.

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

Vorel v. NBA Properties, Inc. · filed 2001-07-30(a)(7)

On a motion to dismiss pursuant to CPLR 3211, a court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every favorable inference (see, Leon v Martinez, 84 NY2d 83; Rovello v Orofino Realty Co., 40 NY2d 633; Roth v Goldman, 254 AD2d 405, 406).

On a motion to dismiss that has not been converted to summary judgment, a plaintiff need not prove the allegations; the plaintiff’s affidavits may cure an inartfully pleaded complaint, while the defendant’s affidavits seldom defeat a claim.

Johnson v. Spence · filed 2001-08-27(a)(7)

Furthermore, where a motion to dismiss a complaint pursuant to CPLR 3211 has not been converted to a motion for summary judgment, affidavits submitted by the plaintiff may be used to remedy an inartfully pleaded complaint, but affidavits from the defendant seldom may be used to defeat a claim (see, Rovello v Orofino Realty Co., supra).

On a CPLR 3211(a) motion to dismiss, the complaint’s allegations are deemed true and given every favorable inference.

Kaufman v. Village of Mamaroneck · filed 2001-09-10(a)

It is well settled that in considering a motion to dismiss pursuant to CPLR 3211 (a), the allegations in the complaint must be deemed to be true and accorded every favorable inference ... Even according the plaintiff every favorable inference, the action is untimely.

On a motion to dismiss under CPLR 3211(a)(7), a court may consider evidentiary material to remedy defects in a complaint.

Beyer v. DaimlerChrysler Corp. · filed 2001-10-01(a)(7)

Although evidentiary material may be considered on a motion to dismiss to remedy defects in a complaint (see, Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633), the evidence submitted by the plaintiff does not demonstrate that she has a cause of action against Daimler-Chrysler for breach of implied warranty.

On a CPLR 3211 motion to dismiss, the court assumes the complaint’s allegations are true and construes the complaint liberally in the plaintiff’s favor.

Axelrod v. 400 Owners Corp. · filed 2001-10-29

In evaluating a motion to dismiss, the court assumes the allegations of the complaint to be true and liberally construes the complaint in plaintiffs favor (Bansbach v Zinn, 258 AD2d 710 [3d Dept 1999]).

A motion to dismiss cannot resolve a factual question about whether a party’s litigation conferred a benefit supporting indemnification.

330 Acquisition Co. v. Regency Savings Bank, F.S.B. · filed 2002-04-11

The extent to which litigation undertaken by plaintiff conferred a benefit upon defendant is a question of fact that is not amenable to resolution on a motion to dismiss.

An unambiguous agreement may be construed as a matter of law on a motion under CPLR 3211(a).

Goldsmith v. Metromedia Fiber Network, Inc. · filed 2002-04-23(a)

Since the subject agreement is unambiguous on its face (see, Reiss v Financial Performance Corp., 97 NY2d 195), it may be construed as a matter of law on a CPLR 3211 (a) motion (cf., Kushner v King, 126 AD2d 466, 468).

A plaintiff moving under CPLR 3211(b) to dismiss a statute of limitations defense must show that the cause of action is timely.

Town of Hempstead v. Lizza Industries, Inc. · filed 2002-04-29(b)

By parity of reasoning, a plaintiff moving to dismiss a statute of limitations defense bears a converse burden: to show that the cause of action is timely. The Town failed to meet that burden.

On a CPLR 3211 motion, the court gives the plaintiff every plausible favorable inference unless documentary evidence negates essential facts.

Ramerica International, Inc. v. Mil-Spec Industries, Corp. · filed 2002-04-30

It is well established that on a CPLR 3211 motion to dismiss, the pleadings are to be construed so as to give the plaintiff the benefit of every plausible favorable inference, the court’s task being only to determine if the facts alleged comport with a cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88; Rovello v Orofino Realty Co., 40 NY2d 633, 634), unless the essential facts can be negated on the basis of documentary evidence (cfi., Blackgold Realty Corp. v Milne, 119 AD2d 512, affd 69 NY2d 719; cf., Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81, affd 94 NY2d 659).

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

Skarren v. Household Finance Corp. · filed 2002-07-15(a)(7)

Accepting the allegations in the complaint as true and according them the benefit of every favorable inference as required on a motion to dismiss (see Campaign for Fiscal Equality v State of New York, 86 NY2d 307, 318; Blumenreich v North Shore Health Sys., 287 AD2d 529, 530), we find that the complaint sufficiently pleads actual malice to overcome the qualified privilege asserted by the defendants (see Stukuls v State of New York, 42 NY2d 272).

When the moving party offers evidentiary material on a motion to dismiss for failure to state a cause of action, the court determines whether the pleading’s proponent has a cause of action, rather than merely whether one is stated.

Columbo v. Chase Manhattan Automotive Finance Corp. · filed 2002-08-19(a)(7)

Where the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Leon v Martinez, 84 NY2d 83, 87-88; Steiner v Lazzaro & Gregory, 271 AD2d 596; Roth v Goldman, 254 AD2d 405, 406).

On a motion to dismiss for failure to state a claim, facts alleged in affidavits cannot defeat the complaint unless they conclusively negate its allegations and leave no significant factual dispute.

Monogram Credit Card Bank of Georgia v. Mata · filed 2002-10-04(a)(7)

The court may not rely on facts alleged in affidavits to defeat the complaint unless they establish the absence of any significant dispute regarding those facts and completely and conclusively negate the allegations in the complaint.

On a motion to dismiss under CPLR 3211(a)(7), a court may consider undisputed evidence showing that a material allegation is not a fact at all.

Oliver v. Garris · filed 2002-10-21(a)(7)

Evidentiary material may be considered on a motion to dismiss made pursuant to CPLR 3211 (a) (7) to assess the viability of a complaint where such evidence demonstrates that a material fact alleged by the plaintiff to be true is “not a fact at all,” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see Rovello v Orofino Realty Co., 40 NY2d 633, 635; Mayerhoff v Timenides, 269 AD2d 369).

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

Nick v. Greenfield · filed 2002-11-07

On a motion made pursuant to CPLR 3211, the allegations in a complaint are taken as true and all inferences which flow reasonably therefrom are resolved in favor of the pleader (see Cron v Hargro Fabrics, 91 NY2d 362, 366).

CPLR 3211(a)(1) and (7) do not warrant dismissal when factual issues must be resolved before the claimed obligations can be determined.

Tighe v. C. Raimondo & Son Construction Co. · filed 2002-10-28(a)(1) and (7)

Issues of fact exist and must be resolved, before the question of the appellant’s obligations can be determined.

On a motion to dismiss under § 3211(a)(7), the court determines whether the complaint alleges a cause of action, construing its allegations liberally in the plaintiff’s favor and presuming them true.

Andre Strishak & Associates, P.C. v. Hewlett Packard Co. · filed 2002-12-30(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), a court must determine whether the allegations in the complaint set forth a cause of action (see Guggenheimer v Ginzburg, 43 NY2d 268, 275). The allegations of the complaint are to be liberally construed in the light most favorable to the plaintiff, and the allegations therein are presumed to be true (see Rovello v Orofino Realty Co., 40 NY2d 633, 634).

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

Hynes v. Griebel · filed 2002-12-30(a)

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

On a preanswer motion to dismiss under CPLR 3211(a)(7), a plaintiff need not provide evidence supporting the complaint’s allegations.

Salles v. Chase Manhattan Bank · filed 2002-12-31(a)(7)

In addition, while a plaintiff may be required to supply evidentiary support for his claims in response to a motion for summary judgment under CPLR 3212, he is not obligated to do so in response to a preanswer motion to dismiss under CPLR 3211.

On a motion to dismiss, the court takes the complaint’s allegations as true and gives them every favorable reasonable inference when deciding whether they state a claim.

Bailey v. Gray, Seifert & Co. · filed 2002-12-31(a)(7)

The complaint was properly dismissed since its allegations, even when taken as true and given the benefit of every favorable reasonable inference (see Peisinger Creative Branding Sys. v CBS Cable Networks, 299 AD2d 184), do not permit a determination that defendants could be bound by the oral promise of Lawrence Bishop, a principal of defendant Gray, Seifert & Co., Inc. and head of its Human Resources Department, to the effect that plaintiff’s stock options would not be forfeited in the near aftermath of her resignation.

CPLR 3211 tests the sufficiency of a pleading; it does not require the evidentiary showing needed for summary judgment.

Houbigant, Inc. v. Deloitte & Touche, LLP · filed 2003-01-21

To require a “showing” of an evidentiary nature (as in LaSalle) on a CPLR 3211 dismissal motion improperly imports a summary judgment standard into the orbit of CPLR 3211 analysis, and is beyond what is required to uphold the sufficiency of a pleading.

A CPLR 3211 motion cannot resolve a factual dispute over whether challenged conduct was justified; that determination belongs at trial or, potentially, on summary judgment.

Hammer v. American Kennel Club · filed 2003-02-27

Determination on the merits as to whether the requisite justification is established would be proper in the context of trial or, perhaps, on summary judgment. However, that is a question that the Court cannot properly resolve in the context of this CPLR 3211 motion.

CPLR 3211(a) permits a court to consider a mortgage assignment submitted in opposition to a motion to dismiss as evidence supporting the plaintiff’s claim.

Federal National Mortgage Ass'n v. Youkelsone · filed 2003-03-17(a)

The Supreme Court properly considered the assignment of mortgage proffered in opposition to the defendant’s motion to dismiss as evidence in support of the plaintiffs claim (see CPLR 3211 [a]; Leon v Martinez, 84 NY2d 83, 88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

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

Feder, Goldstein, Tanenbaum & D'Errico v. Ronan · filed 2003-04-29

In considering a motion to dismiss pursuant to CPLR 3211, the material allegations of the complaint are deemed to be true.

On a motion to dismiss under CPLR 3211(a)(7), the court may consider evidentiary material, but should not dismiss the complaint unless the defendant shows that a material allegation is false and no significant dispute exists about it.

Yew Prospect, LLC v. Szulman · filed 2003-05-19(a)(7)

Where, as here, evidentiary material is submitted on a motion to dismiss pursuant to CPLR 3211 (a) (7), it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates that a material fact alleged by the plaintiff “is not a fact at all” and that “no significant dispute exists regarding it,” the complaint should not be dismissed (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a CPLR 3211 motion to dismiss, allegations are taken as true, but bare legal conclusions and factual claims contradicted by documentary evidence are not.

Tal v. Malekan · filed 2003-05-22

While it is true that allegations in a complaint are to be taken as true when considered on a motion to dismiss pursuant to CPLR 3211, “allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration” (Caniglia v Chicago Tribune-New York News Syndicate, 204 AD2d 233, 233-234 [1994]). Plaintiffs assertion of a “partnership” with defendants is such a bare legal conclusion.

On a motion to dismiss under CPLR 3211, the court accepts the alleged facts as true and gives plaintiffs every favorable inference.

Cirillo v. Slomin's Inc. · filed 2003-06-15(a)(7)

In ruling upon a motion to dismiss, the court must accept the facts alleged as true and accord plaintiffs the benefit of every possible favorable inference.

On a CPLR 3211 motion to dismiss, a factual dispute does not justify dismissal; the court assumes the complaint’s allegations are true and gives the plaintiff all reasonable inferences.

Mackey v. 1525 Dorchester Co. · filed 2003-06-27

However, such a factual dispute is not grounds for granting a motion to dismiss under CPLR 3211. Rather, the court must assume the allegations in the complaint are true and plaintiff is entitled to all the reasonable inferences therefrom.

When a movant submits evidence with a motion to dismiss for failure to state a cause of action, the court determines whether the plaintiff has a cause of action, rather than whether the pleading states one.

Thoubboron v. Convery · filed 2003-06-30(a)(7)

Where evidence is submitted by the movant in support of the CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Columbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327 [2002]; Steiner v Lazzaro & Gregory, 271 AD2d 596 [2000]).

On a motion to dismiss under CPLR 3211(a)(7), the court does not resolve factual disputes about whether the plaintiff can prove pleaded special damages.

Sprewell v. NYP Holdings, Inc. · filed 2003-06-30(a)(7)

Instead, it merely raises factual issues inappropriate for resolution on a motion to dismiss under CPLR 3211 (q) (7).

On a motion under CPLR 3211(a)(7), the court accepts the plaintiff’s factual allegations as true and draws reasonable inferences in the plaintiff’s favor.

Rabouin v. Metropolitan Life Insurance · filed 2003-08-14(a)(7)

Accepting plaintiffs factual allegations as true and resolving all inferences which reasonably flow therefrom in plaintiffs favor, as we must on this motion to dismiss pursuant to CPLR 3211 (a) (7) (see Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]), we conclude, as did the motion court, that plaintiff, by alleging that defendant insurer’s manipulation of its surplus resulted in an inequitable dividend allocation to participating whole life policyholders such as herself, i.e., an allocation not reflective of the actual earnings potential of the amounts contributed to the surplus by whole life policyholders, has stated a claim for breach of her contract of insurance.

On a CPLR 3211 motion to dismiss, affidavits may be considered when they conclusively establish that the plaintiff has no cause of action.

Taylor v. Pulvers, Pulver, Thompson & Kuttner · filed 2003-11-06

The affidavits submitted on the motion to dismiss the complaint pursuant to CPLR 3211 were properly considered inasmuch as they conclusively established that plaintiff had no cause of action (see Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; Fields v Leeponis, 95 AD2d 822 [1983]) for legal malpractice for defendant law firm’s failure to seek a default judgment against a nonanswering defendant in the underlying medical malpractice action.

On a motion to dismiss for failure to state a cause of action, defendant’s affidavits that merely dispute the complaint’s factual allegations do not establish grounds for dismissal.

Skillgames v. Brody · filed 2003-11-20(a)(7)

Contrary to defendant’s contention, the affidavits submitted in support of defendant’s CPLR 3211 (a) (7) motion do not “conclusively establish that [plaintiff] has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see also Health-Loom Corp. v Soho Plaza Corp., 209 AD2d 197 [1994]); they merely dispute some of the factual allegations of the complaint.

On a CPLR 3211(a)(7) motion, a court may consider evidentiary material to assess whether the complaint states a cause of action.

Illions v. Allstate Insurance · filed 2003-12-22(a)(7)

Contrary to the plaintiff’s contention, the Supreme Court properly considered the evidentiary material which the defendant submitted in support of its motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).

When a movant submits evidence on a CPLR 3211(a)(7) motion, the court determines whether the plaintiff has a cause of action, not merely whether the complaint states one.

Rochdale Village, Inc. v. Zimmerman · filed 2003-12-29(a)(7)

Where evidence is submitted by the movant in support of the CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Columbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327 [2002]).

CPLR 3211(c) permits a court to consider a plaintiff’s opposing affidavit when deciding a motion to dismiss.

Harrison v. Constantino · filed 2003-12-31(c)

We further conclude that the facts alleged in the complaint as well as those set forth in the affidavit submitted by plaintiff Kevin J. Harrison in opposition to the motion to dismiss (see CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]) are sufficient to state a cause of action for legal malpractice (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 513 [1990], lv dismissed 77 NY2d 940 [1991]; see also Weiner v Hershman & Leicher, 248 AD2d 193 [1998]).

Section 3211(a)(1) permits a court to consider documents attached to the defendant’s motion papers even when they are not part of the complaint.

Arts4All, Ltd. v. Hancock · filed 2004-03-02(a)(1)

Although not part of the complaint, we have considered both the severance agreement, in which defendant agreed to be a witness in the New Jersey litigation, and the letter itself, in which defendant expressed concern to the judge that Arts4All “may be attempting to intimidate me for the purpose of influencing my testimony,” both of which were attached to defendant’s papers in support of the motion (CPLR 3211 [a] [1]; see Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001]).

On a motion to dismiss for failure to state a claim, the court may consider a bill of particulars when assessing whether the plaintiff has a potentially meritorious cause of action.

Kardas v. Union Carbide Corp. · filed 2004-03-25(a)(7)

Where, as here, there is a challenge to the sufficiency of a claim, "extrinsic material such as the bill of particulars ... may be considered in determining whether plaintiff has a 'potentially meritorious' cause of action" ( Huyler v. Rose , 88 A.D.2d 755,755 [4th Dept. 1982], appeal dismissed 57 N.Y.2d 777 [1982]).

On a motion under CPLR 3211(a)(7), the court assumes the truth of the plaintiff’s factual allegations.

Equis Corp. v. Mack-Cali Realty Corp. · filed 2004-04-20(a)(7)

In its complaint and an affidavit of its senior vice-president David Itzkowitz, plaintiff Equis alleges the following facts, the truth of which we must assume on this motion to dismiss pursuant to CPLR 3211 (a) (7) (see e.g. McGill v Parker, 179 AD2d 98, 105 [1992]).

On a motion to dismiss under CPLR 3211(a)(7), the court may consider the plaintiff’s affidavits to remedy defects in the complaint.

Fresh Direct v. Blue Martini Software, Inc. · filed 2004-05-03(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

When the movant submits evidence on a motion to dismiss, the court determines whether the plaintiff has a cause of action, not merely whether the complaint states one.

Premier Capital, Inc. v. Klein · filed 2004-05-03(a)(7)

Where evidence is submitted by the movant in support of a CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether it has stated one (see Calumbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327, 328 [2002]).

Section 3211 requires courts to accept the complaint’s factual allegations as true and prevents dismissal based on a disputed fact.

Cointech, Inc. v. Masaryk Towers Corp. · filed 2004-05-18

On a motion to dismiss pursuant to CPLR 3211, a court must construe the complaint liberally, accept as true the facts alleged in the complaint and accord the plaintiff the benefit of every possible favorable inference (see Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 289 [2003]). Whether Cointech was aware of HPD’s involvement is a disputed issue of fact that cannot be the basis for dismissal pursuant to CPLR 3211.

On a motion to dismiss for failure to state a cause of action, the court accepts pleaded facts as true, gives the plaintiff every possible inference, and denies dismissal if the allegations disclose any cognizable cause of action.

Constantine v. Kay · filed 2004-11-08(a)(7)

In a motion to dismiss for failure to state a cause of action, the court must accept as true the facts alleged in the pleading and accord plaintiff the benefit of every possible inference (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]). If factual allegations are discerned which manifest any cause of action cognizable at law, the motion to dismiss must be denied (Maldonado v Olympia Mech. Piping & Heating Corp., 8 AD3d 348 [2004]).

When evidentiary material supports a motion to dismiss, dismissal is warranted only if it shows that a material fact alleged in the complaint is not a fact at all and is not significantly disputed.

Allstate Insurance v. Raguzin · filed 2004-11-15(a)(7)

Where, as here, evidentiary material is submitted in support of a motion to dismiss the complaint, the motion should be granted only where such evidence demonstrates that a material fact alleged by the plaintiff to be true is “not a fact at all,” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Illions v Allstate Ins. Co., 2 AD3d 686 [2003]; Yew Prospect v Szulman, 305 AD2d 588, 589 [2003]; Museum Trading Co. v Bantry, 281 AD2d 524, 525 [2001]).

On a motion to dismiss, the court accepts the plaintiff’s alleged facts as true and gives the plaintiff every favorable inference.

Salvatore R. Beltrone Marital Trust II v. Lavelle & Finn, LLP · filed 2004-12-16(a)

On a motion to dismiss, the court must accept, as true, the facts alleged by plaintiffs to give them the benefit of every favorable inference (see CPLR 3211 [a]).

Section 3211(c) permits the court to consider affidavits on a motion to dismiss.

Fallsview Glatt Kosher Caterers, Inc. v. Rosenfeld · filed 2005-01-10(c)

The affidavits are appropriately considered on the motion (see CPLR 3211 [c]); as for the documents, Mr. Rosenfeld does not question their admissibility, although he does dispute the significance of some of them.

On a motion to dismiss under CPLR 3211, the court construes the complaint liberally and assumes its factual allegations are true when deciding whether it states a legally cognizable claim.

1199 Housing Corp. v. International Fidelity Insurance · filed 2005-01-13

On a motion to dismiss directed at the sufficiency of the complaint, the plaintiff is afforded the benefit of a liberal construction of the pleadings: “The scope of a court’s inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed” (P.T. Bank Cent. Asia v ABN AMRO Bank, 301 AD2d 373, 375 [2003]), the object being “to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action” (id. at 376; see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

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

Zysk v. Fidelity Title Insurance · filed 2005-01-24(a)(7)

Accepting the facts set forth in the complaint and the plaintiff’s affidavit as true, and according him the benefit of every favorable inference, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-52 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Lipton v Unumprovident Corp., 10 AD3d 703, 706 [2004]), we find that the plaintiff has failed to sustain a cause of action alleging slander per se.

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

Rohrlich v. Consolidated Bus Transit, Inc. · filed 2005-02-22(a)(7)

Accepting the allegations of the complaint as true, and affording the plaintiff the benefit of every favorable inference, the complained-of conduct did not “so transcendí ] the bounds of decency as to be regarded as atrocious and intolerable in a civilized society” (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]; see Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 181-182 [1989]).

On a § 3211 motion, evidentiary material can support dismissal when it conclusively disproves a material allegation.

Kelly v. Schwend · filed 2005-02-14

Where, as here, evidentiary material was submitted in support of a motion to dismiss, the motion may be granted where such evidence demonstrates that a material fact alleged by the plaintiff to be true is not a fact at all or that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Allstate Ins. Co. v Raguzin, 12 AD3d 468 [2004]).

On a motion to dismiss under CPLR 3211, the court must construe the pleadings liberally, accept the complaint’s allegations as true, and give the plaintiff every possible inference.

EBC I, Inc. v. Goldman, Sachs & Co. · filed 2005-06-07

In the context of a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference ( see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

On a motion to dismiss under CPLR 3211(a)(7), documents submitted by the defendant do not warrant dismissal unless they conclusively establish that the plaintiff has no cause of action.

Gibraltar Steel Corp. v. Gibraltar Metal Processing · filed 2005-06-10(a)(7)

The documents submitted by defendants in support of the motion, including the 1993 certificates of assumed name and the 1995 partnership federal tax return, do not conclusively establish that defendant was not a partner of the partnership in 2001 or 2002, when the debt at issue accrued. Therefore, dismissal was not warranted based on the documents submitted by defendants in support of the motion.

On a motion to dismiss, affidavits and documentary evidence may negate factual allegations otherwise presumed true.

Wilhelmina Models, Inc. v. Fleisher · filed 2005-06-23(a)(7)

Factual allegations presumed to be true on a motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evidence (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]). Thus, the terms of the commitment letter could properly be considered on the motion to dismiss.

On a CPLR 3211 motion, the court may consider evidentiary material to remedy defects in a complaint and determine whether the alleged facts fit a cognizable legal theory.

Gaines v. City of New York · filed 2005-06-27

Accordingly, the court may freely consider evidentiary material submitted on the motion in order to remedy any defects in the complaint (Vorel v NBA Props., 285 AD2d 641 [2d Dept 2001] [mem]), with the salient issue for determination being “whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

On a motion to dismiss for failure to state a cause of action, submitted evidence warrants dismissal only if it shows that a material allegation is false and no significant dispute exists about it.

Pechko v. Gendelman · filed 2005-07-05(a)(7)

Here, the evidentiary material submitted by Ressler & Ressler in support of its motion did not demonstrate that these allegations were premised on material facts that were not facts at all, or that no significant dispute existed regarding the allegations.

Section 3211 governs motions to dismiss a complaint and the standards for deciding them.

Burrowes v. Combs · filed 2006-01-10

Although on a motion to dismiss the allegations in a complaint should be construed liberally, to avoid dismissal of a tortious interference with contract claim a plaintiff must support his claim with more than mere speculation (see Williams & Co. v Collins Tuttle & Co., 6 AD2d 302, 307 [1958], lv denied 5 NY2d 710 [1959]).

Section 3211(a)(3) requires allegations on a preanswer motion to dismiss to be accepted as true and given every favorable inference.

Saratoga Lake Protection & Improvement District v. Department of Public Works of Saratoga Springs · filed 2006-02-07(a)(3)

On a preanswer motion to dismiss, the allegations of the petitioners’ pleadings and their submissions in opposition to the dismissal motion must be accepted as true and given every favorable inference.

Section 3211(a)(1) permits a pre-answer motion to dismiss when documentary evidence establishes a defense to the claim.

Torrenzano Group, LLC v. Burnham · filed 2006-02-16(a)(1)

While it is unclear whether TTG’s agreement with nonparty Convergys to procure speaking engagements for Convergys’ executives (the Convergys agreement) was terminable at will, relieving TTG from having to plead that Burnham’s alleged interference with that contract was accomplished through “wrongful means” (cf. Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191-192 [1980]), it is clear, by virtue of documentary evidence submitted by Burnham in support of this pre-answer motion to dismiss (CPLR 3211 [a] [1]), that the alleged interference had an economic justification (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]), requiring TTG to adduce evidence in opposition sufficient to raise an issue of fact in that regard (see Ullmann v Norma Kamali, Inc., 207 AD2d 691, 692 [1994]).

On a CPLR 3211 motion to dismiss, a plaintiff need not show evidentiary facts supporting allegations of malice.

Pezhman v. City of New York · filed 2006-03-21(a)(7)

Although allegations of malice may not rest on mere surmise and conjecture (see e.g. Hanlin v Sternlicht, 6 AD3d 334 [2004]), on a motion to dismiss, a plaintiff is not obligated to show evidentiary facts to support her allegations of malice (see Arts4All, Ltd. v Hancock, 5 AD3d 106, 109 [2004]).

Section 3211(a)(5) permits dismissal based on a release, but factual disputes about the release require denial of the motion.

Lopez v. 121 St. Nicholas Avenue H.D.F.C. · filed 2006-04-04(a)(5)

By extension, if questions of fact exist as to whether the release was a product of duress, illegality, fraud, or mutual mistake, the defendants’ motion, inter alia, to dismiss the complaint on the basis of the same release must be denied.

Section 3211(a)(7) requires courts to construe complaints liberally, presume their allegations true, give plaintiffs favorable inferences, and dismiss when documentary evidence contradicts the claims.

Jericho Group, Ltd. v. Midtown Development, L.P. · filed 2006-08-17(a)(7)

On a motion to dismiss pursuant to CPLR 3211, the complaint is afforded a liberal construction (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The facts alleged in the complaint are presumed to be true, and it is the role of the court to “accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]). However, dismissal is warranted if the documentary evidence contradicts the claims raised in the complaint (id.; Mobil Oil Corp. v Joshi, 202 AD2d 318, 318-319 [1994]).

On a motion to dismiss, a court may determine the merits when interpreting an unambiguous lease raises pure issues of law.

401 West 14th Street Fee LLC v. Mer Du Nord Noordzee, LLC · filed 2006-11-14(a)(7)

Since interpretation of an unambiguous lease is involved, raising pure issues of law for the court (see Hirsch v Food Resources, Inc., 24 AD3d 293, 295 [2005]), the motion court properly determined the merits of the action at this juncture (cf. Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1969]).

CPLR 3211 requires a complaint on a motion to dismiss to be liberally construed, with allegations accepted as true and every favorable inference given, while the court determines whether the alleged facts fit any cognizable legal theory.

Adams v. Hickey · filed 2006-12-05

“On a motion to dismiss pursuant to CPLR 3211, the amended complaint is to be afforded a liberal construction. The facts as alleged in the amended complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory”

CPLR 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim.

Cohen v. Nassau Educators Federal Credit Union · filed 2007-02-27(a)(1)

“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim” (Sheridan v Town of Orangetown, 21 AD3d 365, 365 [2005]).

Section 3211 permits dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Beal Savings Bank v. Sommer · filed 2007-03-22

On a motion to dismiss pursuant to CPLR 3211, the court may grant dismissal when "`documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law'" ( Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005], quoting Held v Kaufman, 91 NY2d 425, 430-431 [1998]).

On a CPLR 3211 motion, factual allegations presumed true may be negated by affidavits and documentary evidence.

Fenster v. Smith · filed 2007-04-03

The court properly considered Smith’s affidavit since factual allegations presumed to be true on a CPLR 3211 motion may properly be negated by affidavits and documentary evidence (see Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, 269 [2005]).

Section 3211(a)(7) requires the court to draw all inferences in the plaintiff's favor when deciding a motion to dismiss for failure to state a cause of action.

Tarrant Apparel Group v. Camuto Consulting Group, Inc. · filed 2007-05-31(a)(7)

Drawing all inferences in plaintiffs favor, as one must on a motion to dismiss under CPLR 3211 (a) (7), Simpson’s obligation under section 6.6 of the Master License Agreement to “be actively involved in promoting the . . . Sub-Licensed Products” and to “publicly wear or use the . . . Sub-Licensed Products” is arguably performance that is rendered directly to plaintiff, the sublicensee.

Section 3211 requires the court to accept pleaded facts as true, give plaintiffs every favorable inference, and decide whether those facts fit a cognizable legal theory.

Nonnon v. City of New York · filed 2007-06-27

On a CPLR 3211 motion to dismiss, 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” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Under CPLR 3211(a)(7), documentary proof that disproves an essential allegation warrants dismissal even if the complaint’s allegations alone would state a cause of action.

Peter F. Gaito Architecture, LLC v. Simone Development Corp. · filed 2007-12-04(a)(7)

If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661 [2005]).

On a CPLR 3211 motion, courts liberally construe the pleadings, accept alleged facts as true, and give plaintiffs every favorable inference.

Walton v. New York State Department of Correctional Services · filed 2007-12-14

It is well settled that, in response to a motion pursuant to CPLR 3211, pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (see Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87 [1994]).

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

Sheridan v. Carter · filed 2008-02-05(a)(7)

In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint (see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375 [2006]).

On a pre-answer motion under section 3211(a)(7), a defendant’s affidavit can support dismissal only if it conclusively defeats the claim or shows without significant dispute that a material allegation is false.

Selby v. Stewart · filed 2008-02-14(a)(7)

A defendant’s affidavit may be considered on a pre-answer motion pursuant to CPLR 3211, but unless it ... “demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all” ... it cannot support an order of dismissal.

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

Athar v. Hudson Service Management, Inc. · filed 2008-02-26(a)(7)

Accepting these factual allegations as true and according the plaintiffs the benefit of every favorable inference, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the cause of action was sufficiently pleaded.

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true and gives them every favorable inference.

Local No. 4, International Ass'n of Heat & Frost & Asbestos Workers v. Buffalo Wholesale Supply Co. · filed 2008-03-14

Here, accepting as true and according every favorable inference to the allegations in the second amended complaint, as we must in determining motions to dismiss pursuant to CPLR 3211 (see MetLife Auto & Home v Basil Chevrolet, 303 AD2d 30, 31 [2002], affd 1 NY3d 478 [2004]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]), we conclude that plaintiffs sufficiently alleged the existence of “a fiduciary relationship . . . which gave the [appellants] an obligation to inform [plaintiffs] of facts underlying the claim” (Gleason, 194 AD2d at 765).

A motion to dismiss under CPLR 3211(a)(3) based on a foreign corporation’s New York business activities does not require a hearing when no relevant facts are disputed.

Highfill, Inc. v. Bruce & Iris, Inc. · filed 2008-04-08(a)(3)

Contrary to the plaintiffs contention, there were no factual issues in dispute with respect to whether the plaintiff was doing business in New York sufficient to warrant a hearing.

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

State v. Shaw Contract Flooring Services, Inc. · filed 2008-03-20(a)(7)

We further note that, “[i]n assessing a motion under CPLR 3211 (a) (7), ... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Leon v Martinez, 84 NY2d at 88). Here, plaintiff submitted the affidavit of a sales representative affiliated with Rochester who established that Rochester was indeed actively involved in the subject flooring project and had been advised that the existing flooring in the dormitory contained asbestos. Consideration of this affidavit supports the finding that plaintiff has stated causes of action against Rochester.

On a CPLR 3211 motion, the court must view the allegations in the light most favorable to the plaintiff and give the plaintiff every favorable inference.

Littman v. Magee · filed 2008-06-10

In view of the court’s obligation on a CPLR 3211 motion to view the allegations in the light most favorable to plaintiff and give him every favorable inference (see AG Capital Funding Partners, 5 NY3d at 591), it was error for the court to impose its understanding of the words at issue as it did.

On a CPLR 3211 motion to dismiss, a respondent’s affidavits will almost never warrant dismissal unless they conclusively establish that the petitioner has no claim or cause of action.

Lawrence v. Miller · filed 2008-12-02

Affidavits submitted by a respondent will almost never warrant dismissal under CPLR 3211 unless they “establish conclusively that [petitioner] has no [claim or] cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).

On a CPLR 3211 motion, the court liberally construes the pleading, accepts its factual allegations as true, and asks whether they fit any cognizable legal theory.

State v. Myers · filed 2008-12-24

The scope of review relevant to a motion to dismiss pursuant to CPLR 3211 is limited. (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998].) When examining such a motion, a court must liberally construe the pleadings in plaintiffs favor, accept the facts alleged as true, and determine whether the facts alleged fit within any cognizable legal theory (id. at 366; Kovach v Hinchey, 276 AD2d 942, 944 [3d Dept 2000]).

On a pre-discovery CPLR 3211 motion, whether the plaintiff can ultimately prove the claim or survive summary judgment plays no part in deciding dismissal.

McCarthy v. Young · filed 2008-12-30

“Whether the complaint will later survive a motion for summary judgment, or whether the plaintiffis] will ultimately be able to prove [their] claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]).

On a CPLR 3211 motion, unsupported statements by counsel about the parties’ intent carry no weight.

Riverside South Planning Corp. v. CRP/Extell Riverside · filed 2008-12-30

Such unsupported statements by counsel are not entitled to any weight whatsoever on a CPLR 3211 motion.

On a CPLR 3211 motion, the court assumes the complaint’s factual allegations and favorable inferences are true and does not resolve factual disputes.

Braddock v. Braddock · filed 2009-01-06

The problem with this reasoning is that it fails to employ the correct standard to be used on a CPLR 3211 motion. Rather than assuming the truth of the factual allegations of the complaint and all possible inferences, the dissent’s reasoning accepts defendants’ view of the circumstances.

On a CPLR 3211 motion to dismiss, the court considers only the petition-complaint, treats its allegations as true, and gives them every favorable inference.

Bloodgood v. Town of Huntington · filed 2009-01-13

On a motion to dismiss pursuant to CPLR 3211 and 7804 (f), the petition-complaint alone must be considered, and all of its allegations are deemed true and afforded the benefit of every favorable inference (see Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 594 [2005]; Matter of 10 E. Realty. LLC v Incorporated Vil. of Val. Stream, 17 AD3d 474, 475 [2005]).

When a court considers evidentiary material on a motion under CPLR 3211(a)(7), it determines whether the plaintiff has a cause of action.

Elliot v. Teplitsky · filed 2009-02-10(a)(7)

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must determine whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Fishberger v Voss, 51 AD3d 627, 628 [2008]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]).

When both sides submit evidence on a CPLR 3211(a)(7) motion, the court determines whether the plaintiff has a claim, not merely whether the pleading states one.

Dupree v. Voorhees · filed 2009-03-23(a)(7)

Moreover, as both parties had submitted evidentiary material in support of and in opposition to the allegations made in the complaint, the court was called upon to determine whether the plaintiff had a claim against the attorneys, not merely whether she had stated one, as part of its review of the pleading pursuant to CPLR 3211 (a) (7).

On a motion to dismiss under CPLR 3211(a)(5), the court may consider a verified pleading submitted in reply when it merely responds to the opposition and raises no new theory or information.

Binkowski v. Hartford Accident & Indemnity Co. · filed 2009-03-27(a)(5)

Contrary to plaintiff’s contention, we conclude that the court properly considered the verified copy of the amended answer submitted by defendant in its reply papers. The reply papers merely responded to plaintiff’s opposition to the motion and raised no new theories or contained new information.

On a motion to dismiss under CPLR 3211(a)(7), a plaintiff’s own evidentiary submissions can establish conclusively that it has no cause of action.

M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd. · filed 2009-04-07(a)(7)

Because plaintiffs own evidentiary submissions “conclusively establish that [it] has no cause of action,” dismissal of the complaint as to Lauras and 14-16 East is appropriate (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]).

On a motion to dismiss under CPLR 3211(a)(7), the court may consider the plaintiff’s affidavits to remedy defects in the complaint.

Dacosta v. Trade-Winds EnvironMental Restoration, Inc. · filed 2009-04-07(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]; Meyer v Guinta, 262 AD2d 463, 464 [1999]).

When the moving party submits evidentiary material on a motion to dismiss for failure to state a cause of action, the court determines whether the plaintiff has a cause of action, not merely whether the pleading states one.

Congel v. Malfitano · filed 2009-04-21(a)(7)

However, where, as here, the moving party has submitted evidentiary material, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Pincus v Wells, 35 AD 3d 569, 570 [2006]).

On a motion to dismiss for failure to state a cause of action, CPLR 3211 requires liberal construction of the complaint, acceptance of its allegations as true, and every possible inference in the plaintiff’s favor.

Davis v. Cornerstone Telephone Co. · filed 2009-04-30(a)(7)

When a court considers a motion under CPLR 3211, it “must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Westbank Contr., Inc. v Rondout Val. Cent. School Dist., 46 AD3d 1187, 1188 [2007]).

When evidentiary material is considered on a motion to dismiss under CPLR 3211(a)(7), the court determines whether the plaintiff has a cause of action, rather than merely whether the pleading states one.

Zurich Depository Corp. v. Iron Mountain Information Management, Inc. · filed 2009-04-14(a)(7)

Where, as here, evidentiary material has been considered in support of a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597 [2000]; Meyer v Guinta, 262 AD2d 463, 464 [1999]).