N.Y. C.P.L.R. § 3211

On a CPLR 3211 motion to dismiss, a court may consider affidavits to remedy pleading problems.

Sargiss v. Magarelli · filed 2009-06-04

On a CPLR 3211 motion to dismiss, a court may consider affidavits to remedy pleading problems (Leon v Martinez, 84 NY2d 83, 88 [1994]).

On a motion to dismiss under CPLR 3211(a)(1), the court accepts the complaint’s alleged facts as true and gives the plaintiff every possible favorable inference.

HNH International, Ltd. v. Pryor Cashman Sherman & Flynn LLP · filed 2009-06-18(a)(1)

Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).

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

Fitzgerald v. Federal Signal Corp. · filed 2009-06-23(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”

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

Alaimo v. Town of Fort Ann · filed 2009-06-25

Procedurally, defendants’ appeal involves a CPLR 3211 motion to dismiss, where “the court will ‘accept the facts as alleged in the complaint as true [and] accord plaintiffs the benefit of every possible favorable inference’ ” (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss under CPLR 3211(a)(1), the court construes the pleading liberally, accepts its allegations as true, and gives the plaintiff every favorable inference.

Barrett v. Freifeld · filed 2009-07-28(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1), the pleading is to be afforded a liberal construction, the facts alleged in the complaint are accepted as true, and the plaintiff is afforded the benefit of every possible favorable inference (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582 [2005]).

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

Phillips v. City of New York · filed 2009-07-28

In considering a CPLR 3211 motion to dismiss, the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and must determine whether “the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]), in this case, violations of the State and City HRLs.

On a motion to dismiss for failure to state a claim, an opposing affidavit may supplement deficient allegations in the complaint.

Mathurin v. Lost & Found Recovery, LLC · filed 2009-08-18(a)(7)

Therefore, the amended complaint, supplemented by the plaintiffs affidavit, stated a cause of action against the appellants. Accordingly, the Supreme Court properly denied that branch of the appellants’ motion which was to dismiss the fifth cause of action insofar as asserted against them.

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

Supreme Associates, LLC v. Suozzi · filed 2009-09-22(a)(7)

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

On a CPLR 3211 motion to dismiss, the court accepts the allegations as true, gives the claimant every favorable inference, and determines whether they state a cause of action.

Highbridge Development BR, LLC v. Diamond Development, LLC · filed 2009-11-05

Accepting these assertions as true, as we must in the context of a motion to dismiss, and affording defendants the benefit of every favorable inference (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]), we find that defendants have stated a cause of action for anticipatory repudiation (see O’Connor v Sleasman, 37 AD3d at 956; Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 267 [1995]).

An affidavit submitted on a motion to dismiss warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Godfrey v. Spano · filed 2009-11-19(a)(7)

Although the affidavit does not in itself warrant dismissal under CPLR 3211, because it does not establish conclusively that plaintiffs have no cause of action ( see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]), it supports our judgment that the conclusory nature of plaintiffs' allegations is more than a matter of inartful pleading.

On a CPLR 3211 motion to dismiss, the court takes the complaint’s alleged facts as true and resolves ambiguous allegations in the plaintiff’s favor.

Snyder v. Bronfman · filed 2009-11-23

Because this case arises on a motion to dismiss the first amended complaint (complaint) under CPLR 3211, we take the facts alleged by plaintiff to be true. Where the allegations are ambiguous, we resolve the ambiguities in plaintiffs favor.

CPLR 3211(a)(7), read with (a)(1), permits a court to consider documents and affidavits on a pre-answer motion to dismiss when they conclusively establish a defense.

Dynamic Medical Imaging, P.C. v. State Farm Mutual Automobile Insurance · filed 2009-11-24(a)(7)

Subject to further guidance from our appellate courts, I believe that CPLR 3211 (a) (7), read together with CPLR 3211 (a) (1), allows a court to consider a combination of documents and affidavits when determining whether the defendant is entitled to judgment upon a pre-answer motion to dismiss.

On a CPLR 3211 motion, courts accept plausible factual allegations as true but need not accept bare legal conclusions or claims contradicted by documentary evidence.

JFK Holding Co., LLC v. City of New York · filed 2009-12-08

Although, on a motion to dismiss pursuant to CPLR 3211, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), “[i]t is well settled that bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence . . . are not presumed to be true on a motion to dismiss for legal insufficiency . . . and that when the moving party offers matter extrinsic to the pleadings, the court need not assume the truthfulness of the pleaded allegations, but rather is required to determine whether the opposing party actually has a cause of action or defense, not whether he has properly stated one” (O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154, 154 [1993]).

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

Stuart v. Kushner · filed 2009-12-15(a)(7)

Affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference as required on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]), the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the first cause of action to recover damages for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

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

Falco v. Allstate Insurance · filed 2010-02-11(a)

Even accepting all of the facts alleged by plaintiff in his complaint as true and according him the benefit of every favorable inference, as we must in the context of defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) ... we conclude that Supreme Court properly granted that part of defendant’s motion seeking dismissal of the cause of action alleging the violation of General Business Law § 349.

On review of a CPLR 3211 motion to dismiss, a court that finds a claim sufficiently pleaded may reinstate the claim, but the motion’s procedural posture limits the relief it can grant.

MATTER OF MARON v. Silver · filed 2010-02-23

Here, the allegations by the Maron petitioners are sufficient to state a separation of powers claim. As that case is here before us on a CPLR 3211 motion to dismiss, our corrective action is limited to a reinstatement of that cause of action.

On a motion to dismiss for failure to state a cause of action, admissions in a defendant’s affidavit may be considered to determine whether the plaintiff has a valid claim.

Thomas v. Thomas · filed 2010-02-25(a)(7)

It follows, a fortiori, that admissions in a defendant’s affidavit may similarly be used to ascertain whether a plaintiff has a valid cause of action.

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

People v. First American Corp. · filed 2010-06-08

It is well settled that “[o]n a motion to dismiss pursuant to CPLR 3211, the court must ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Wiesen v New York Univ., 304 AD2d 459, 460 [2003], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). ... We find defendants’ assertions that the Attorney General lacks standing under General Business Law § 349 and that his complaint fails to state a cause of action are without merit.

On a motion to dismiss under CPLR 3211(a)(7), the nonmoving party need not rebut a defense asserted by the moving party.

Sokol v. Leader · filed 2010-06-22(a)(7)

Contrary to the defendant’s contention, on a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party.

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

Lodichand v. Kogut · filed 2011-01-03(a)(7)

The law is well settled that on a motion to dismiss pursuant to CPLR 3211, the complaint must be liberally construed, the allegations therein must be deemed true, the plaintiffs must be afforded every favorable inference which may be drawn therefrom, and the court must determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 88 [1994]).

When a court considers evidentiary material on a motion to dismiss under CPLR 3211(a)(7), the question is whether the plaintiff has a claim, not merely whether the complaint states one.

Weksler v. Weksler · filed 2011-02-01(a)(7)

When evidentiary material is considered, the criterion on a CPLR 3211 (a) (7) motion is whether a plaintiff has a claim, not whether he or she has stated one (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

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

Burton v. Matteliano · filed 2011-02-10(a)(7)

Matteliano’s motion to dismiss was based solely on CPLR 3211 (a) (7), and we therefore must “accept the facts as alleged in the complaint as true, accord plaintiff ] the benefit of every possible favorable inference[ ] and determine only whether the facts as alleged fit within any cognizable legal theory . . . ‘[T]he criterion is whether [plaintiff] has a cause of action, not whether he has stated one’ ” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a CPLR 3211 motion to dismiss, courts treat the complaint’s allegations as true and draw reasonable inferences in the plaintiff’s favor.

Rhodes v. Herz · filed 2011-03-22

When deciding a motion to dismiss a complaint, pursuant to CPLR 3211, as is the case here, all allegations in the complaint are deemed to be true, and all reasonable inferences which can be drawn therefrom shall be resolved in favor of the plaintiff (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]).

On appeal from a CPLR 3211 dismissal, the court must afford the plaintiff the benefit of every possible favorable inference.

Wachter v. Kim · filed 2011-03-31

Further, on this appeal of the grant of a motion to dismiss pursuant to CPLR 3211, we are required to afford plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a CPLR 3211 motion, courts do not presume legal conclusions or factual claims that are inherently incredible or flatly contradicted by documentary evidence to be true.

Mesiti v. Mongiello · filed 2011-05-12

However, “[t]he rule that the facts alleged are presumed to be true does not apply ... to legal conclusions or to factual claims which are either inherently incredible or flatly contradicted by documentary evidence” (Quail Ridge Assoc. v Chemical Bank, 162 AD2d 917, 918 [1990], lv dismissed 76 NY2d 936 [1990]; accord Lopes v Bain, 82 AD3d at 1555).

On a motion to dismiss for failure to state a claim, the court construes the pleadings liberally, accepts the complaint’s allegations as true, and gives the plaintiff every favorable inference.

MBIA Insurance v. Credit Suisse Securities (USA) LLC · filed 2011-06-01(a)(7)

In deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and give the plaintiff the benefit of every favorable inference.

On a motion to dismiss under CPLR 3211, courts construe the pleading liberally, accept its alleged facts as true, and give the plaintiff every favorable inference.

ABN AMRO Bank, N.V. v. MBIA Inc. · filed 2011-06-28

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

When a court considers evidence on a motion to dismiss under CPLR 3211(a)(7) without converting it to summary judgment, dismissal requires the movant to show that a material fact alleged by the plaintiff is not a fact at all and that no significant dispute exists about it.

Bodden v. Kean · filed 2011-07-05(a)(7)

Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810 [2011]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]).

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

Assured Guaranty Municipal Corp. v. DB Structured Products, Inc. · filed 2011-07-25

When the moving party submits affidavits or other documentary evidence in support of its motion, dismissal under CPLR 3211 is warranted “only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.”

Under CPLR 3211(a)(7), a court may not use respondents’ affidavits or other evidence to defeat claims on a motion to dismiss, even if the evidence is admissible.

Allison v. New York City Landmarks Preservation Commission · filed 2011-08-18(a)(7)

Nor may the court consider respondents’ affidavits or other evidence, even if in admissible form, to defeat petitioners’ claims upon a motion to dismiss them pursuant to CPLR 3211 (a) (7).

Evidence submitted on a motion to dismiss for failure to state a cause of action warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Young v. Campbell · filed 2011-08-23(a)(7)

Evidence submitted by a defendant in support of a motion pursuant to CPLR 3211 (a) (7) does not warrant dismissal unless it “conclusively” establishes that the plaintiff has no cause of action (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008] [internal quotation marks omitted]; Sokol v Leader, 74 AD3d 1180, 1182 [2010] [internal quotation marks omitted]).

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

Chelsea 18 Partners, LP v. Mak · filed 2011-11-03

Accepting all of the landlord’s allegations as true and affording them every favorable inference, as we must on a CPLR 3211 motion to dismiss (Salles v Chase Manhattan Bank, 300 AD2d 226 [1st Dept 2002]), the landlord’s complaint sufficiently pleads a pattern of recurring objectionable conduct.

Section 3211(a)(1) does not permit dismissal based on documentary evidence when an arbitration agreement is the asserted defense.

Wen Zong Yu v. Charles Schwab & Co. · filed 2011-11-17(a)(1)

However, we agree with plaintiff that the court should not have granted defendant’s motion to dismiss, because a motion to dismiss the action on the stated ground was improper. The existence of an agreement to arbitrate is not a defense to an action and it “may not be the basis of a motion to dismiss a complaint based on documentary evidence” (Curran v Estate of Curran, 87 AD3d 607 [2011]; see also Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]).

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

RONI LLC v. Arfa · filed 2011-12-20

On a CPLR 3211 motion to dismiss, however, we must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference.

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

Kreamer v. Town of Oxford · filed 2012-01-19(a)(7)

Initially, we reject plaintiffs’ contention that Supreme Court improperly applied the standard applicable to summary judgment motions to the motion to dismiss the complaint (see CPLR 3211 [a] [7]; 3212). Despite a brief reference to plaintiffs’ failure to submit affidavits, the requisite standard was clearly applied; the decision was rendered by “ ‘construing] the pleadings liberally, accepting] the allegations as true and affording] [plaintiffs] the benefit of every possible inference to determine whether the facts alleged fit within a cognizable legal theory’ ” (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1054 [2009], quoting T. Lemme Mech., Inc. v Schalmont Cent. School Dist., 52 AD3d 1006, 1008 [2008]).

On a motion under CPLR 3211(a)(7), a court may consider a defendant’s evidence, but dismissal is improper unless it establishes that a material pleaded fact is false and no significant dispute remains.

Simos v. Vic-Armen Realty, LLC · filed 2012-02-14(a)(7)

A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]). “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Sokol v Leader, 74 AD3d at 1182).

On a motion for failure to state a cause of action, the court disregards defendants’ evidence unless it conclusively establishes that an alleged fact is false.

ARB Upstate Communications LLC v. R.J. Reuter, L.L.C. · filed 2012-03-01(a)(7)

A motion pursuant to CPLR 3211 (a) (7) must be decided without regard to evidence submitted by defendants, unless that evidence “conclusively establishes the falsity of an alleged fact” (Gray v Schenectady City School Dist., 86 AD3d 771, 772 [2011]).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true and draws available inferences in the plaintiff’s favor.

GPS Global Parking Solutions, LLC v. 151 West 17th Street Condominium · filed 2012-03-08

We accept the allegations of the complaint as true and construe the inferences that may be drawn therefrom in plaintiffs favor, as we must on a motion to dismiss pursuant to CPLR 3211 (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; DeMicco Bros., Inc. v Consolidated Edison Co. of N.Y., Inc., 8 AD3d 99 [2004]).

Section 3211(a)(7) requires denial of a motion to dismiss when the defendant’s evidence does not conclusively disprove a material fact alleged in the complaint.

Bokhour v. GTI Retail Holdings, Inc. · filed 2012-04-03(a)(7)

Here, the appellants, who submitted evidentiary material in support of their motion, failed to demonstrate that any fact alleged in the complaint was undisputedly not a fact at all (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied the appellants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.

On a motion to dismiss under CPLR 3211, the court may consider authentic documentary evidence and need not accept conclusory, unsupported allegations as true.

Erich Fuchs Enterprises v. American Civil Liberties Union Foundation, Inc. · filed 2012-05-10

“The court was not required to accept at face value every conclusory, patently unsupportable assertion of fact found in the complaint, but could consider documentary evidence, proved or conceded to be authentic”

On a motion under CPLR 3211(a)(7), a court may consider the nonmoving party’s affidavits to cure defects in the complaint and asks whether the pleader has a cause of action.

Dollard v. WB/Stellar IP Owner, LLC · filed 2012-06-14(a)(7)

“In assessing a motion under CPLR 3211 (a) (7) ... a court may freely consider affidavits submitted by the [nonmoving party] to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v Martinez, 84 NY2d 83, 88 [1994] [internal quotation marks and citations omitted]).

On a motion under CPLR 3211(a)(7), a court may consider affidavits to cure defects in the complaint, including an affidavit submitted by the defendant.

TUPER, PATRICIA P. v. TUPER, KENNETH E. · filed 2012-06-08(a)(7)

Here, the affidavit submitted by defendant in support of his amended motion to dismiss cured any alleged pleading defects in the complaint.

On a motion to dismiss under CPLR 3211(a), the court accepts pleaded facts as true, gives favorable inferences, and asks whether they fit a cognizable legal theory.

Circulo Housing Development Fund Corp. v. Assessor of Long Beach · filed 2012-06-27(a)

According the plaintiff “the benefit of every possible favorable inference,” accepting the facts alleged in the petition as true, and “determining] only whether the facts as alleged fit within any cognizable legal theory,” as the court must on a motion to dismiss a complaint or a petition (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the Supreme Court erred in granting that branch of the respondents’ motion which was pursuant to CPLR 3211 (a) to dismiss so much of the petition as concerned the determination denying the application for real property tax exemption with respect to the East Market Street property.

Section 3211(a)(7) permits a court to consider evidence submitted by a defendant when deciding a motion to dismiss for failure to state a cause of action.

Basile v. Wiggs · filed 2012-08-22(a)(7)

However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180, 1181 [2010] ).

Under CPLR 3211(a)(7), evidence submitted on a motion to dismiss does not warrant dismissal unless it shows that an alleged fact is undisputedly not a fact at all.

Smolian v. Port Authority of New York & New Jersey · filed 2012-09-26(a)(7)

The evidence submitted by the Hospital, however, did not demonstrate that any fact alleged in the complaint was undisputedly “not a fact at all” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Loughry v Lincoln First Bank, 67 NY2d 369, 378 [1986]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]). Accordingly, dismissal of the seventh cause of action pursuant to CPLR 3211 (a) (7) was not warranted.

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

GENESEE/WYOMING YMCA v. BOVIS LEND LEASE LMB, INC. · filed 2012-09-28(a)(7)

Preliminarily, we note that Thomas’s motion to dismiss was based solely on CPLR 3211 (a) (7), and we therefore must “accept the facts as alleged in the [third-party] complaint as true, accord [Bovis] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . ‘[T]he criterion is whether [Bovis] has a cause of action, not whether [it] has stated one’ ” (Leon v Martinez, 84 NY2d 83, 87-88; see Burton v Matteliano, 81 AD3d 1272, 1274, lv denied 17 NY3d 703). Applying that standard of review, we conclude that the court should have granted Thomas’s motion in its entirety.

On a pre-answer motion under CPLR 3211, the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and determines whether the alleged facts fit any cognizable legal theory.

Hakim v. Hakim · filed 2012-10-11

This is an appeal from the disposition of a pre-answer, prediscovery motion to dismiss the complaint pursuant to CPLR 3211. At this juncture, we must “accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

When a court considers evidence on a CPLR 3211(a)(7) motion, it should dismiss only if the evidence establishes without significant dispute that a material allegation is false.

Cucco v. Chabau Café Corp. · filed 2012-10-24(a)(7)

Upon a court’s consideration of such evidentiary material, however, motions to dismiss pursuant to CPLR 3211 (a) (7) should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]).

When considering evidentiary material on a motion under § 3211(a)(7), a court asks whether the plaintiff has a cause of action, rather than merely whether the pleading states one.

Cucco v. Chabau Café Corp. · filed 2012-10-24(a)(7)

When courts consider evidentiary material on motions to dismiss, the criterion becomes whether proponents of pleadings have a cause of action, not whether they have stated one.

On a CPLR 3211(a)(7) motion, documentary evidence that conclusively establishes a defense can show that the plaintiff has no cause of action and warrant dismissal.

Lin v. County of Sullivan · filed 2012-11-01(a)(7)

Inasmuch as “the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d at 88) and it cannot be said that plaintiffs have a cause of action, Supreme Court properly granted defendants’ motion to dismiss the complaint (see Allen v City of New York, 49 AD3d at 1127).

When a court considers evidence on a motion to dismiss without converting it to summary judgment, it asks whether the plaintiff has a cause of action and may dismiss only if the evidence conclusively disproves a material alleged fact.

Rosenbaum v. Sheresky Aronson Mayefsky & Sloan, LLP · filed 2012-11-14(a)(7)

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Rietschel v Maimonides Med. Ctr., 83 AD3d at 810).

On a motion to dismiss for failure to state a cause of action, the court may consider evidentiary material submitted by the defendant.

Baumann v. Hanover Community Bank · filed 2012-11-21(a)(7)

However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]).

Under CPLR 3211(a)(7), dismissal is improper when the movant’s evidence does not conclusively refute a material allegation.

Weill v. East Sunset Park Realty, LLC · filed 2012-12-12(a)(7)

The evidentiary submissions of East Sunset and Flushing failed to demonstrate that the material fact as alleged by the plaintiffs with respect to the priority of their interest “was undisputedly not a fact at all” (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [2012]; see Jannetti v Whelan, 97 AD3d 797, 798 [2012]). Accordingly, the Supreme Court should have denied that branch of the motion of East Sunset and Flushing which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.

On a motion to dismiss for failure to state a cause of action, the court accepts facts in the plaintiff’s opposing affidavit as true; a defendant’s contrary affidavit does not warrant dismissal unless it conclusively establishes that the plaintiff has no cause of action.

MANTIONE, JOSEPH v. v. CRAZY JAKES, INC. · filed 2012-12-28(a)(7)

Thus, accepting that fact as true, as we must on this motion to dismiss, we conclude that the evidence does not conclusively establish that Doel and Brocius were not present at the time of the incident and that they therefore were not participants in the wrongful conduct (see generally Rovello, 40 NY2d at 636; Clark v Pine Hill Homes, Inc., 112 AD2d 755, 755).

On a CPLR 3211(a)(7) motion, the court may consider a plaintiff’s affidavit to cure defects in the complaint and determine whether the plaintiff has a cause of action.

Mantione v. Crazy Jakes, Inc. · filed 2012-12-28(a)(7)

In determining a CPLR 3211 motion, “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005]).

On a motion to dismiss under CPLR 3211(a)(1) and (7), the court accepts the complaint’s allegations as true and draws inferences in the plaintiff’s favor unless documentary evidence conclusively disproves an alleged fact.

Devash LLC v. German American Capital Corp. · filed 2013-01-10(a)(1) and (7)

On such a motion we are required to accept all of the allegations in the complaint as true, and to draw all inferences from those allegations in the light most favorable to the plaintiff, unless the documentary evidence conclusively disproves an alleged fact (see generally Leon v Martinez, 84 NY2d 83, 87 [1994]).

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

Woss, LLC v. 218 Eckford, LLC · filed 2013-01-23(a)(7)

On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026), “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]).

A plaintiff opposing a motion to dismiss may use an affidavit to remedy defects in the complaint, but cannot use it to advance entirely new causes of action without seeking leave to replead or amend.

Woss, LLC v. 218 Eckford, LLC · filed 2013-01-23(a)(7)

The affidavit submitted by the plaintiff in opposition did not remedy a defect in pleading but advanced entirely new causes of action premised on the 2007 Agreement without seeking leave to replead or amend the complaint (cf. Schenkman v New York Coll, of Health Professionals, 29 AD3d 671, 673 [2006]).

On a motion to dismiss under CPLR 3211, the court accepts the complaint’s factual allegations and reasonable inferences as true.

Loreley Financing Jersey No. 4 Ltd. v. UBS Ltd. · filed 2013-04-05

On a motion to dismiss, the court must accept as true the facts alleged in the complaint as well as all reasonable inferences that may be gleaned from those facts.

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

Law Offices of Frishberg v. Toman · filed 2013-04-03

“CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). Accordingly, Frishberg’s failure to submit an affidavit was not fatal to his opposition, and the Supreme Court should not have granted the Ziobro defendants’ motion to dismiss the complaint insofar as asserted against them on that basis.

On a motion to dismiss under CPLR 3211, a court may consider affidavits and other evidence to determine whether the defendant has conclusively established that the plaintiff has no cause of action.

TIEDE, TONYA v. FRONTIER SKYDIVERS, INC. · filed 2013-04-26

On a motion to dismiss pursuant to CPLR 3211, a court “may . . . consider affidavits and other evidentiary material to ‘establish conclusively that plaintiff has no cause of action’ ” (Mantione v Crazy Jakes, Inc., 101 AD3d 1719, 1720).

A motion to dismiss a contract claim must be denied when the contract is ambiguous so the parties can present evidence of their intent.

Vectron International, Inc. v. Corning Oak Holding, Inc. · filed 2013-05-02(a)(7)

In the context of a motion to dismiss, if the contract’s language is ambiguous, then the motion must be denied to permit the parties to discover and present extrinsic evidence of the parties’ intent.

When a party submits evidence on a motion under section 3211(a)(7), the inquiry shifts from whether the complaint states a claim to whether the plaintiff actually has one.

QK Healthcare, Inc. v. InSource, Inc. · filed 2013-05-08(a)(7)

Where a party offers evidentiary proof on a motion pursuant to CPLR 3211 (a) (7), the focus of the inquiry turns from whether the complaint states a cause of action to whether the plaintiff actually has one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

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

Ray v. Ray · filed 2013-07-09(a)

Since the motion that is the subject of this appeal is for an order dismissing the complaint based upon CPLR 3211 (a), regardless of which subsection of CPLR 3211 (a) a motion to dismiss is brought under, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Plaza PH2001 LLC v Plaza Residential Owner LP, 98 AD3d 89, 99 [1st Dept 2012]).

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

Nelson v. Lattner Enterprises · filed 2013-07-18(a)(7)

On these motions to dismiss, “the complaint is liberally construed, the facts alleged [in the complaint and any submission submitted in opposition to the dismissal motions] are accepted as true, plaintiff[ is] accorded every favorable inference and the court determines only whether the facts alleged in the complaint ‘fit within any cognizable legal theory’ ” (Lazic v Currier, 69 AD3d 1213, 1213-1214 [2010], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]).

On a motion to dismiss under CPLR 3211(a)(7), the court may not consider respondents’ evidence outside the petitions and their supporting materials.

New York Independent Contractors Alliance v. Liu · filed 2013-07-18(a)(7)

This evidence is principally outside the petitions and their supporting affidavits and exhibits. As set forth above, the court may not consider respondents’ evidence upon a motion pursuant to CPLR 3211 (a) (7).

On a motion under Section 3211(a)(7), evidentiary material can establish that a pleaded material allegation is not a fact and warrant dismissal.

Kalmon Dolgin Affiliates, Inc. v. Tonacchio · filed 2013-10-16(a)(7)

Here, the Supreme Court should have granted that branch of the moving defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action insofar as asserted against Katan and 267. The evidentiary material submitted by the moving defendants demonstrated that the plaintiffs allegation that it had entered into the letter agreement with Katan was “not a fact at all” (Guggenheimer v Ginzburg, 43 NY2d at 275).

On a CPLR 3211(a)(5) motion, the court takes the plaintiff’s allegations as true and resolves reasonable inferences in the plaintiff’s favor.

DeJohn v. Speech, Language & Communication Associates · filed 2013-11-08(a)(5)

Taking plaintiffs “allegations as true and resolv[ing] all inferences which reasonably flow therefrom in [her] favor” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]), we conclude that the court properly denied the motion.

On a CPLR 3211 motion, the court accepts the complaint’s factual allegations and reasonable inferences favorable to the plaintiff as true.

Lucker v. Bayside Cemetery · filed 2013-12-31

For purposes of these CPLR 3211 motions we must accept as true the factual allegations of the complaints and all inferences favorable to plaintiffs that reasonably flow from them (see Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]).

On a CPLR 3211 motion to dismiss, the court considers the petition in the light most favorable to the petitioner.

Jamie's Place I LLC v. Cardi · filed 2014-01-28

Considering the verified petition in the light most favorable to landlord, as is required on review of tenant’s underlying CPLR 3211 motion to dismiss, we find that it asserted a viable possessory claim by alleging that, at approximately 1:00 in the morning on a specified date, tenant’s named guest “intentionally vandalized” the building by “purposely” “smashing the glass lobby door.”

On a motion to dismiss under CPLR 3211(a), the court views the complaint in the plaintiff’s favor and deems its allegations true when assessing whether a fraud claim is sufficiently pleaded.

Crescentini v. Slate Hill Biomass Energy, LLC · filed 2014-01-29(a)

Viewing the complaint in the light most favorable to the plaintiff, and deeming all allegations therein to be true ... the plaintiff has sufficiently pleaded all of the elements of fraud.

On a CPLR 3211(a)(7) motion, the court may consider evidence beyond the pleadings when assessing whether the plaintiff has a cause of action.

Basis Yield Alpha Fund v. Goldman Sachs Group, Inc. · filed 2014-01-30(a)(7)

In any event, the concurrence’s contention that this Court is limited to the pleadings, when reviewing a motion to dismiss pursuant to CPLR 3211 (a) (7), is not a completely accurate statement of the law.

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

Snyder v. Brown Chiari, LLP · filed 2014-04-03(a)(7)

“Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus” (London v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013] [internal quotation marks and citations omitted]) and “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

Ferran v. City of Albany · filed 2014-04-10(a)(7)

“On a motion to dismiss, under CPLR 7804 (f) or CPLR 3211 (a) (7), the court must look at the petition/complaint itself, accepting all of its allegations as true, to determine whether a cause of action exists”

On a CPLR 3211(a)(7) motion, allegations are accepted as true unless documentary evidence refutes them.

Loreley Financing (Jersey) No. 3 Ltd. v. Citigroup Global Markets Inc. · filed 2014-05-08(a)(7)

Citigroup moved pursuant to CPLR 3211 (a) (7) but has submitted documentary evidence allegedly refuting plaintiffs’ fraud allegations. Such allegations will be accepted as true unless refuted by documentary evidence.

On a motion to dismiss for failure to state a cause of action, the court may consider emails and correspondence from the defendant to the plaintiff.

Estate of Feder v. Winne, Banta, Hetherington, Basralian & Kahn, P.C. · filed 2014-05-15(a)(7)

The motion court properly considered the email and correspondence from defendant to plaintiff, as executor of the estate, in dismissing the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) (David v Hack, 97 AD3d 437, 438 [1st Dept 2012]; see also Eighth Ave. Garage Corp. v Kaye Scholer LLP, 93 AD3d 611, 612 [1st Dept 2012], lv denied 19 NY3d 807 [2012]; Robinson v Robinson, 303 AD2d 234, 235-236 [1st Dept 2003]).

On a motion to dismiss under CPLR 3211(a)(7), the complaint is construed liberally, its alleged facts are accepted as true, and the plaintiff receives every favorable inference in determining whether it states a cognizable claim.

GILEWICZ, THOMAS v. BUFFALO GENERAL PSYCHIATRIC UNIT · filed 2014-06-13(a)(7)

On a CPLR 3211 motion to dismiss, “plaintiff’s complaint is to be afforded a liberal construction, . . . the facts alleged therein are accepted as true, and . . . plaintiff is to be afforded every possible favorable inference in order to determine whether the facts alleged in the complaint ‘fit within any cognizable legal theory’ ” (Palladino v CNY Centro, Inc., 70 AD3d 1450, 1451, quoting Leon v Martinez, 84 NY2d 83, 87-88; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152).

On a motion to dismiss under CPLR 3211(a)(7), the burden does not shift to the plaintiff to disprove a defense.

Baumann v. Long Island Power Authority · filed 2014-07-03(a)(7)

Defendants offer absolutely no evidence to support the proposition that electricity in New York has traditionally been provided by public entities, and the burden on a motion to dismiss pursuant to CPLR 3211 (a) (7) never shifts to the plaintiff to disprove a defense.

Section 3211(a)(7) permits dismissal when evidence submitted on a motion disproves an essential allegation of the complaint.

Korsinsky v. Rose · filed 2014-09-17(a)(7)

Dismissal pursuant to CPLR 3211 (a) (7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914 [2009]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]; McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660 [2005]).

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

North Star Contracting Corp. v. MTA Capital Construction Co. · filed 2014-09-18(c)

Under CPLR 3211 (c), a trial court may use affidavits in its consideration of a pleading motion to dismiss (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

On a CPLR 3211(a)(5) motion, the plaintiff’s allegations and opposing affidavit are construed favorably, with reasonable inferences drawn in the plaintiff’s favor.

Ford v. Phillips · filed 2014-10-16(a)(5)

In resolving a motion for dismissal pursuant to CPLR 3211 (a) (5), the plaintiffs allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light (see Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Enock v National Westminster Bankcorp, 226 AD2d 235, 236 [1996]).

On a motion to dismiss under CPLR 3211(a)(5), the court must credit the allegations in the complaint.

Herman v. Herman · filed 2014-10-23(a)(5)

Plaintiffs are correct that the court should have credited the allegations in the complaint on this motion to dismiss pursuant to CPLR ... 3211 (a) (5) (see e.g. Benn v Benn, 82 AD3d 548 [1st Dept 2011]; New York Tel. Co. v Mobil Oil Corp., 99 AD2d 185, 192 [1st Dept 1984]; see also Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

When a court considers evidence on a motion to dismiss without converting it to summary judgment, it asks whether the plaintiff has a cause of action and should dismiss only if a claimed material fact is conclusively disproved.

Caliguri v. JPMorgan Chase Bank, N.A. · filed 2014-10-29(a)(7)

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sposato v Paboojian, 110 AD3d at 979; Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d at 574-575).

Section 3211(a)(7) permits dismissal when evidence disproves an essential allegation of the complaint, even if the complaint’s allegations alone would state a cause of action.

Siskin v. Cassar · filed 2014-11-12(a)(7)

Dismissal pursuant to CPLR 3211 (a) (7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Korsinsky v Rose, 120 AD3d 1307 [2014]; Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914 [2009]).

Under CPLR 3211(a)(7), a defendant’s affidavits generally warrant dismissal only if they conclusively establish that the plaintiff has no cause of action.

Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc. · filed 2014-11-26(a)(7)

“Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [2012] [internal quotation marks omitted]). ... Moreover, the affidavits submitted by the defendant in support of its motion “failed to demonstrate that any fact alleged in the complaint was undisputedly not a fact at all” (Bokhour v GTI Retail Holdings, Inc., 94 AD3d at 683; see Guggenheimer v Ginzburg, 43 NY2d at 275).

Section 3211(a)(7) permits a court to consider a defendant’s evidentiary submissions on a motion to dismiss; the submissions must be conclusive to warrant dismissal.

LIBERTY AFFORDABLE HOUSING, INC. v. MAPLE COURT APARTMENT · filed 2015-01-02(a)(7)

Miglino was “not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits” (20 NY3d at 351) because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a CPLR 3211 (a) (7) motion. We therefore conclude that the court properly considered defendant’s evidentiary submissions in evaluating the motion to dismiss at bar.

A plaintiff may remedy defects in a complaint through an affidavit opposing a motion to dismiss, but the affidavit must actually cure those defects.

Tarantino v. Queens Ballpark Co., LLC · filed 2014-12-31(a)(7)

Moreover, although a plaintiff may remedy defects in a complaint by submitting an affidavit in opposition to a motion to dismiss pursuant to CPLR 3211 (a) ... here, the plaintiffs affidavit failed to do so.

On a motion under CPLR 3211(a)(7), evidentiary proof that disproves an essential allegation can warrant dismissal even if the complaint alone states a cause of action.

Shaffer v. Gilberg · filed 2015-02-04(a)(7)

Dismissal pursuant to CPLR 3211 (a) (7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Siskin v Cassar, 122 AD3d at 716).

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

Smith v. Pottery King, Inc. · filed 2015-02-11(a)(7)

“In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then raise a factual question about tolling, inapplicability, or timely commencement.

Loiodice v. BMW of North America, LLC · filed 2015-02-11(a)

The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period (see Jalayer v Stigliano, 94 AD3d at 703; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358 [2011]).

On a CPLR 3211 motion, the court assumes the pleaded facts and reasonable inferences are true and determines whether the complaint states a legally cognizable claim.

People v. Barclays Capital Inc. · filed 2015-02-13

The court is not permitted to assess the merits of the complaint or any of its factual allegations, but may only determine if, assuming the truth of the facts alleged and the inferences that can be drawn from them, the complaint states the elements of a legally cognizable cause of action.

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the moving defendant bears the initial burden of establishing the plaintiff’s lack of standing as a matter of law.

U.S. Bank National Ass'n v. Guy · filed 2015-02-18(a)(3)

On a defendant’s motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint based upon the plaintiffs alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiffs lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]).

Section 3211(a)(7) permits dismissal when evidence considered on a motion establishes that a material alleged fact is false and no significant dispute remains.

Pinnacle Realty of New York, LLC v. 255 Butler, LLC · filed 2015-02-25(a)(7)

Since the evidentiary submissions demonstrated that this material fact alleged by the plaintiff to be one was “not a fact at all” and “no significant dispute exists regarding it” ... the Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint.

A plaintiff opposing a motion to dismiss may submit an affidavit to remedy defects in the complaint.

Igneri v. Igneri · filed 2015-02-18(a)(7)

In opposition to a motion to dismiss pursuant to CPLR 3211 (a) (7), the plaintiff may submit an affidavit to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

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

TIAA Global Investments, LLC v. One Astoria Square LLC · filed 2015-03-03

We begin our discussion, as we often do in analyzing motions brought pursuant to CPLR 3211, by emphasizing that we must afford the pleading a liberal construction, accept the facts as alleged as true, and accord a plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss under § 3211(a)(1), the court accepts the plaintiff’s allegations as true, but a release covering those claims can still warrant dismissal.

De Lande Long v. O'Neill · filed 2015-03-03(a)(1)

Orders, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about January 9, 2013, which granted defendants’ motions to dismiss the complaint pursuant to CPLR 3211 (a) (1), unanimously affirmed, without costs. ... Moreover, even accepting as true (as we must on a motion to dismiss) plaintiffs argument that he believed his claims did not exist when he executed the settlement agreement, this argument would not change the outcome, as the release disposed of even unripe and contingent claims.

On a motion to dismiss under section 3211(a)(7), affidavits and documents outside the complaint are not properly considered; under section 3211(a)(1), documentary evidence must conclusively establish a defense.

GEM Holdco, LLC v. Changing World Technologies, L.P. · filed 2015-04-23(a)(1), (a)(7)

The CWT defendants’ argument depends on affidavits and documents that are not properly considered on a motion to dismiss pursuant to CPLR 3211 (a) (7) and do not conclusively establish a defense based on documentary evidence pursuant to CPLR 3211 (a) (1).

Section 3211(a)(7) permits dismissal when evidence considered on the motion shows that the plaintiff has no cause of action and no significant factual dispute remains.

Everett v. Eastchester Police Department · filed 2015-04-29(a)(7)

“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Agai v Liberty Mut. Agency Corp., 118 AD3d 830, 832 [2014]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Pinnacle Realty of N.Y., LLC v 255 Butler, LLC, 125 AD3d 952 [2015]).

On review of a dismissal under CPLR 3211(a)(5), the court accepts the complaint’s allegations as true and gives the plaintiff every favorable inference.

Faison v. Lewis · filed 2015-05-12(a)(5)

As a preliminary matter, because this is an appeal from a dismissal under CPLR 3211 (a) (5), "[w]e accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citation omitted]). Accordingly, for purposes of this appeal, we must assume that the deed is forged.

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, it asks whether the plaintiff has a cause of action and may dismiss when the evidence conclusively establishes that none exists.

Renaissance Venture Capital Corp. v. Fidelity National Title Insurance · filed 2015-05-13(a)(7)

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]). Here, the defendant submitted evidence conclusively establishing that the plaintiff had no cause of action.

When a defendant submits evidence on a motion to dismiss that has not been converted to summary judgment, the court asks whether the plaintiff has a cause of action, rather than whether the complaint states one.

Orlando v. New York Homes By J & J Corp. · filed 2015-05-13(a)(7)

When a defendant submits evidence in support of a motion to dismiss pursuant to CPLR 3211 (a) (7), and the motion has ... not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Paino v Kaieyes Realty, LLC, 115 AD3d 656, 656-657 [2014]).

A plaintiff opposing a motion to dismiss may submit an affidavit to remedy defects in the complaint, and its allegations are deemed true for the motion.

Ducillo v. Hudson Valley at Saint Francis, LLC · filed 2015-05-20(a)(5)

We note that in opposition to the appellants’ motions, the plaintiff was permitted to submit an affidavit in order to remedy defects in his complaint, and that the allegations contained therein are also deemed to be true for the purposes of this motion (see Ford v Phillips, 121 AD3d 1232, 1234 [2014]; AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803 [2007]).

Section 3211(a)(7) permits dismissal when evidence establishes that a material fact alleged in the complaint is not a fact at all.

Thaw v. North Shore University Hospital · filed 2015-06-17(a)(7)

Here, the evidence in the record upon which the Supreme Court relied established that "a material fact as claimed by the plaintiff" was "not a fact at all" ( Agai v Liberty Mut. Agency Corp ., 118 AD3d 830, 832). Notwithstanding the plaintiff's allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper ( see Ponholzer v Simmons , 78 AD3d 1495; Salandy v Bryk , 55 AD3d 147, 152; cf. Cerilli v Kezis , 306 AD2d 430).

CPLR 3211 cannot be used to dismiss a motion on the ground that it was made on short notice.

Matter of Miller v. New York State Div. of Human Rights · filed 2015-06-17

Similarly, the petitioner cannot employ CPLR 3211 to seek the “dismissal” of a motion ... which, in this case, he contends was made on short notice in violation of CPLR 2214 (b).

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

TOWN OF MACEDON v. VILLAGE OF MACEDON · filed 2015-06-19(a)(5)

Inasmuch as this is a CPLR 3211 motion to dismiss, we must “[a]ccept[] the allegations in the [amended] complaint as true and accord[ ] [the Town] the benefit of every favorable inference” (190 Murray St. Assoc., LLC v City of Rochester, 19 AD3d 1116, 1116, citing Leon v Martinez, 84 NY2d 83, 87- 88).

On a CPLR 3211 motion, a court may consider a decision from a court of coordinate jurisdiction and an agency letter ruling when assessing whether the plaintiff has a cause of action.

GERRISH, ROBERT v. STATE UNIVERSITY OF NEW YORK · filed 2015-06-19

We conclude that the court did not err in considering the decision and order of a court of coordinate jurisdiction determining that another professor was an employee of the University although a foundation at the University funded that professor’s research. We further conclude that the court did not err in considering a letter ruling by the State Department of Labor, submitted as an attachment to an affirmation in support of one of the motions, determining that the Foundation defendants did not employ professors even though an institutional foundation was the conduit for funds to pay the professors and others.

On a CPLR 3211 motion, the court may consider affidavits and other evidence that conclusively show the plaintiff has no cause of action.

Gerrish v. State University · filed 2015-06-19

“In determining a CPLR 3211 motion, . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one . . . The court may also consider affidavits and other evidentiary material to establish conclusively that plaintiff has no cause of action . . . Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true” ... We further conclude that the court did not err in considering a letter ruling by the State Department of Labor, submitted as an attachment to an affirmation in support of one of the motions, determining that the Foundation defendants did not employ professors even though an institutional foundation was the conduit for funds to pay the professors and others.

Under CPLR 3211(a)(7), an affidavit submitted with a motion to dismiss must conclusively establish that the plaintiff has no cause of action to warrant dismissal.

Hallwood v. Incorporated Vil. of Old Westbury · filed 2015-07-01(a)(7)

Contrary to the appellants’ contention, the Supreme Court properly denied their motion to dismiss the complaint insofar as asserted against them, as the affidavit they submitted in support did not “establish conclusively” that the plaintiffs have no cause of action (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008] [internal quotation marks omitted]; see Bodden v Kean, 86 AD3d 524, 526 [2011]; Sokol v Leader, 74 AD3d 1180, 1182 [2010]).

On a pre-answer motion to dismiss for lack of standing, the moving defendant bears the burden of making a prima facie showing that the plaintiff lacks standing.

Deutsche Bank Trust Co. Americas v. Vitellas · filed 2015-07-01(a)

Applying this standard here, the defendants, as the moving parties, failed to make a prima facie showing that Deutsche Bank lacked standing.

On a motion to dismiss for failure to state a cause of action, the complaint receives a liberal construction.

Cockburn v. City of New York · filed 2015-06-17(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint is to be afforded a liberal construction (see CPLR 3026).

Section 3211(a)(7) does not permit pre-answer dismissal of a defamation complaint based on truth or privilege defenses that have not been pleaded in an answer.

Baines v. Daily News L.P. · filed 2015-07-13(a)(7)

As plaintiff points out, the court may not dismiss his complaint under CPLR 3211 (a) (7) based on the alleged defamatory articles’ truth or the Daily News defendants’ privilege before the moving defendants have raised the articles’ truth or defendants’ privilege as an affirmative defense in an answer (Fletcher v Dakota, Inc., 99 AD3d 43, 55-56 [1st Dept 2012]; Garcia v Puccio, 17 AD3d 199, 201 [1st Dept 2005]; Acosta v Vataj, 170 AD2d 348 [1st Dept 1991]; Wilcox v Newark Val. Cent. School Dist., 74 AD3d 1558, 1562 [3d Dept 2010]; see Aguinaga v 342 E. 72nd St. Corp., 14 AD3d 304 [1st Dept 2005]; Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 1163 [3d Dept 2005]).

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

Tirpack v. 125 North 10, LLC · filed 2015-07-22(a)(7)

Applying those principles, the complaint, as amplified by the plaintiff’s affidavit, sets forth a cognizable cause of action to recover damages for negligence against Jason Fixler.

On a CPLR 3211 motion to dismiss, the court views the complaint in the plaintiff’s favor and gives the plaintiff the benefit of reasonable inferences.

Schroeder v. Pinterest Inc. · filed 2015-10-06

Viewed in the light most favorable to plaintiffs, and giving them the benefit of all reasonable inferences, the complaint sufficiently alleges that Cohen was still an officer of Rendezvoo and Skoop Media at the time of the alleged breach.

On a motion to dismiss a claim as time-barred, a plaintiff may submit an affidavit to remedy defects in the complaint, and its allegations are deemed true for purposes of the motion.

Martino v. Panos · filed 2015-09-23(a)(5)

We note that, in opposition to Mid Hudson’s motion, the plaintiff was permitted to submit an affidavit in order to remedy defects in his complaint, and that the allegations contained therein are also deemed to be true for the purposes of this motion (see Ducillo v Hudson Val. at St. Francis, LLC, 128 AD3d 885 [2015]; Ford v Phillips, 121 AD3d 1232, 1234 [2014]; AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803 [2007]).

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

El-Dehdan v. Salim El-Dehdan, Also Known as , Sam Reed · filed 2015-10-20

On a CPLR 3211 motion to dismiss, the Court accepts facts as alleged in the complaint as true, accords the plaintiff the benefit of every possible favorable inference, and determines whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

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

Levy v. Smith · filed 2015-10-28(a)(7)

Here, however, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the facts alleged in the complaint were ... sufficient to permit a reasonable inference that the appellant intended and authorized the republication of the allegedly defamatory content of the press releases in the news articles identified at paragraph 83 of the complaint (see National Puerto Rican Day Parade, Inc. v Casa Publs., Inc., 79 AD3d 592, 594-595 [2010]; Campo v Paar, 18 AD2d 364, 368 [1963]; see also Restatement [Second] of Torts § 576).

When evidence is submitted on a motion to dismiss under § 3211(a)(7), dismissal requires a showing that an alleged material fact is not a fact at all and that no significant dispute exists about it.

F & M General Contracting v. Oncel · filed 2015-10-28(a)(7)

Here, the documentary evidence submitted by the defendants in support of this branch of their motion did not establish that a fact alleged by the plaintiff was not a fact at all or that there was no significant dispute regarding it (cf. Vertical Progression, Inc. v Canyon Johnson Urban Funds, 126 AD3d at 786-787).

On a motion to dismiss under CPLR 3211(a), the court accepts pleaded facts as true, considers facts amplified by the plaintiff’s affidavit, and gives the plaintiff every favorable inference.

Cherry v. Duke · filed 2015-12-02(a)

Accepting as true the facts pleaded in the complaint, as amplified by the plaintiffs affidavit, and according the plaintiff “the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]), we find that the Supreme Court properly denied the appellants’ pre-answer motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them.

On a motion to dismiss for lack of standing, the moving defendant bears the initial burden of showing that the plaintiff lacks standing.

HSBC Bank USA, N.A. v. Lewis · filed 2015-12-09(a)

On a motion pursuant to CPLR 3211 (a) to dismiss a complaint for lack of standing, “the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied” (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at 59-60). Here, the defendants failed to eliminate questions of fact regarding whether the underlying note was assigned to the plaintiff prior to the filing of the bankruptcy petition, giving the plaintiff standing to commence this action. Accordingly, the Supreme Court should have denied the motion.

Under CPLR 3211(a), investigation reports do not warrant dismissal when they fail to resolve a material factual dispute conclusively.

American Insurance v. Schnall · filed 2015-12-09(a)

Contrary to Brooklynbaca’s contention, at this stage of the proceedings, it cannot be said that the fire investigation reports conclusively proved, beyond “significant dispute,” that only Scientific’s work under the installation contract was implicated in the action (Guggenheimer v Ginzburg, 43 NY2d at 275).

On a CPLR 3211 motion to dismiss, an inference must arise from alleged facts rather than speculation unsupported by the record.

Cotia (USA) Ltd. v. Lynn Steel Corp. · filed 2015-12-10

Given that this is a motion to dismiss under CPLR 3211, plaintiff contends “the correct inference to be drawn by the trial court. . . would be that [defendants] would have engaged in multiple and purposeful contacts in the State of New York.” That would not, however, be an inference drawn from the facts alleged, but pure speculation, based on nothing in the record.

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

Facebook, Inc. v. DLA Piper LLP (US) · filed 2015-12-29(a)(7)

On a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and accord plaintiffs the benefit of every favorable inference (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true and draws inferences in the pleader’s favor when deciding whether a claim is sufficiently pleaded.

Basis Yield Alpha Fund Master v. Stanley · filed 2015-12-29(a)(7)

Taking the allegations of the amended complaint as true, and drawing all inferences in favor of the pleader, we hold that the complaint sufficiently pleads that Basis Yield had no reason to inquire into these matters, and could not readily have investigated them independently, as more fully discussed in connection with the due diligence issue.

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Ader v. Guzman · filed 2016-01-13(a)(1)

“A motion to dismiss made pursuant to CPLR 3211 (a) (1) will fail unless the documentary evidence that forms the basis of the defense resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37 [2006]; see 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851 [2015]).

On a motion to dismiss under CPLR 3211(a)(7), facts that equally support opposing inferences must be resolved in the plaintiff’s favor.

REGAN, RICHARD v. CITY OF GENEVA · filed 2016-02-11(a)(7)

On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor (see Leon, 84 NY2d at 87-88).

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

Stewart v. Westchester Institute for Human Development · filed 2016-02-24(a)(7)

With respect to WIHD’s cross motion to dismiss, “[i]n considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory5 ”

When a court considers evidence on a motion to dismiss under CPLR 3211(a)(7) without converting it to summary judgment, it asks whether the plaintiff has a cause of action, not merely whether the complaint states one.

Meyer v. North Shore-Long Island Jewish Health System, Inc. · filed 2016-03-09(a)(7)

When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a motion to dismiss for lack of standing, the moving defendant must make a prima facie showing that the plaintiff lacks standing.

Flagstar Bank, FSB v. Campbell · filed 2016-03-09(a)(3)

On a motion to dismiss for lack of standing, “ ‘the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied’ ” ... Since Campbell failed to establish, prima facie, the plaintiff’s lack of standing, the Supreme Court erred in directing the dismissal of the complaint on this ground.

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

Schottland v. Brown Harris Stevens Brooklyn, LLC · filed 2016-03-16(a)

On a motion to dismiss pursuant to CPLR 3211, the complaint is to be afforded a liberal construction (see CPLR 3026). 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 [1994]).

On a motion to dismiss under CPLR 3211(a)(7), a plaintiff may submit an affidavit to remedy defects in the complaint.

Freundlich v. Pacific Indemnity Co. · filed 2016-03-16(a)(7)

In opposition to a motion to dismiss pursuant to CPLR 3211 (a) (7), the plaintiff may submit an affidavit to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).

When evidentiary material is submitted on a motion under section 3211(a)(7), dismissal requires a showing that a material alleged fact is false and no significant dispute exists about it.

Fedele v. Qualified Personal Residence Trust of Doris Rosen Margett · filed 2016-03-16(a)(7)

Where, as here, evidentiary material is submitted, the criterion becomes whether the plaintiffs have a cause of action, not whether they have stated one, so that the motion must be denied unless it has been shown that a material fact is not a fact at all and no significant dispute exists regarding it (see Sokol v Leader, 74 AD3d 1180 [2010]). Here, the Hospital’s evidentiary submissions failed to show that the plaintiffs did not have a cause of action.

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

Brady v. Gaudelli · filed 2016-03-16(a)(7)

In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, a court must accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and determine only whether the factual allegations fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]; Salvatore v Kumar, 45 AD3d 560, 562-563 [2007]).

On a CPLR 3211 motion to dismiss, the court gives the plaintiff every possible favorable inference and asks whether the alleged facts fit any cognizable legal theory.

Pirro & Sons, Inc. v. Pirro · filed 2016-03-18

In deciding a motion pursuant to CPLR 3211, we must afford plaintiff “the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

When a defendant submits evidence on a motion to dismiss under CPLR 3211(a)(7), the question is whether the plaintiff has a cause of action, rather than whether the pleading states one.

J. Petrocelli Contracting, Inc. v. Morganti Group, Inc. · filed 2016-03-23(a)(7)

When a defendant submits evidentiary material in support of a motion to dismiss pursuant to CPLR 3211 (a) (7), the analysis is “ ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” (Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

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

Theaprin Pharmaceuticals, Inc. v. Conway · filed 2016-03-30(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the plaintiffs’ allegations as true and construe the allegations liberally, giving the plaintiffs the benefit of every possible favorable inference (see Dee v Rakower, 112 AD3d 204, 208 [2013]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011]).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion, it may dismiss if the material establishes that the plaintiff has no cause of action.

SI Hylan Care, LLC v. 2454-2464 Hylan Boulevard, LLC · filed 2016-04-13(a)(7)

Here, the owner submitted evidentiary material, including the prime lease, the sublease, and certain correspondence between the parties. That evidence demonstrated that the subtenant did not have a cause of action against the owner to enforce the sublease provision that purportedly granted the subtenant a right to purchase the property. ... Accordingly, the Supreme Court should have granted the owner’s motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Under CPLR 3211 (a) (1) and (7), dismissal is unwarranted when the evidence neither negates a material fact alleged by the plaintiff nor conclusively establishes a defense.

Wells Fargo Bank N.A. v. E & G Development Corp. · filed 2016-04-20(a)(1), (a)(7)

The evidence submitted by the defendants in support of their motion did not show that a material fact as claimed by the plaintiff was not a fact at all (see CPLR 3211 [a] [7]; see Guggenheimer v Ginzburg, 43 NY2d at 275), and did not utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326).

CPLR 3211(a)(7) permits a court to interpret an unambiguous contract on a motion to dismiss because its interpretation is a question of law.

Episcopal Health Services, Inc. v. POM Recoveries, Inc. · filed 2016-04-20(a)(7)

Contrary to POM’s contention, this issue may be properly decided on a CPLR 3211 (a) (7) motion because “the interpretation of an unambiguous contract is a question of law for the ... court” (Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001]; see 805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451 [1983]).

On a CPLR 3211 motion to dismiss, the court accepts the pleaded facts as true, gives the plaintiff every favorable inference, and may dismiss when documentary evidence conclusively establishes a defense.

VASSENELLI, NICHOLAS L. v. CITY OF SYRACUSE · filed 2016-04-29(a)

It is axiomatic that, “[w]hen a court rules on a CPLR 3211 motion to dismiss, it ‘must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ . . . The motion may be granted if ‘documentary evidence utterly refutes [the] plaintiff[s’] factual allegations’ . . . , thereby ‘conclusively establishing a defense as a matter of law’ ” (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63; see Leon v Martinez, 84 NY2d 83, 87-88).

When documentary evidence is submitted on a CPLR 3211(a)(7) motion, the court may determine whether the pleading’s proponent has a cause of action.

Douglas v. New York City Department of Education · filed 2016-06-06(a)(7)

Further, on a motion made pursuant to CPLR 3211, when documentary evidence is submitted by the parties, the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Abreu, 2014 NY Slip Op 50647 [U] [granting DOE’s cross motion brought pursuant to CPLR 3211 to dismiss an article 75 petition seeking to vacate an arbitration award terminating petitioner]).

On a CPLR 3211 motion, courts liberally construe the complaint, accept its allegations as true, give plaintiffs favorable inferences, and ask whether the alleged facts fit a cognizable legal theory.

Maldonado v. DiBre · filed 2016-06-23

On a motion to dismiss pursuant to CPLR 3211, we construe the pleadings liberally, accept the allegations in the complaint to be true, give plaintiffs the benefit of any favorable inferences and "determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Mesiti v Mongiello, 84 AD3d 1547, 1548-1549 [2011]).

On a motion to dismiss under CPLR 3211(a)(7), the court assumes the complaint’s allegations are true and views the plaintiff’s pleadings and sworn opposition in the light most favorable to the plaintiff.

Hooker v. Magill · filed 2016-06-23(a)(7)

On a motion addressed to the pleadings we are required to assume the truth of the allegations contained in the complaint. Plaintiff’s pleadings and sworn statements in opposition to the motion, when viewed in the light most favorable to her and all reasonable inferences drawn in her favor, state a legally sufficient claim for negligent hiring, supervision and credentialing, notwithstanding unsubstantiated averments from NYU’s representatives to the effect that its internal records maintained in the ordinary course of business did not give notice of a sexual propensity by the physician, or indicate that he engaged in inappropriate sexual conduct while employed by NYU (see generally Leo v Mt. St. Michael Academy, 272 AD2d 145 [1st Dept 2000]).

On a pre-answer motion under CPLR 3211(a) to dismiss a foreclosure complaint for lack of standing, the movant must establish prima facie that the plaintiff lacks standing.

Enhanced Acquisitions II, LLC v. McSam Tribeca, LLC · filed 2016-07-06(a)

Accordingly, the burden was on the appellants to establish, prima facie, that the plaintiff lacked standing (see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]).

On a motion to dismiss for lack of standing, the defendant bears the initial burden of showing that the plaintiff lacks standing; a factual question about standing defeats the motion.

Shinnecock Neighbors v. Town of Southampton · filed 2016-08-30(a)(3)

On a motion pursuant to CPLR 3211 (a) to dismiss a complaint for lack of standing, “the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied . . . [and] the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]).

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

Katz v. Beil · filed 2016-09-14(a)(7)

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

On a motion to dismiss for lack of standing, evidence raising a question of fact about whether the plaintiff held the note when the action began can defeat dismissal.

U.S. Bank, National Ass'n v. Noble · filed 2016-11-09(a)(3)

The foregoing was sufficient to raise a question of fact as to whether the plaintiff’s agent had physical possession of the note at the time of commencement of the action.

On a motion under section 3211(a), the court may decline to consider an affidavit outside the complaint.

25 Avenue C New Realty, LLC v. Law Offices of Jeffrey Samel & Partners · filed 2016-11-15(a)

The court properly declined, on this motion to dismiss pursuant to CPLR 3211 (a), to consider the affidavit by defendant law firm’s principal saying that Bigelow ceased to be employed by the firm in April 2009 (see Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).

An unsworn affidavit has no probative value when submitted for consideration on a motion to dismiss.

Maki v. The Travelers Companies, Inc. · filed 2016-12-08(c)

Any affidavits submitted by plaintiff may be used to cure any deficiencies in the pleadings (see Chanko v American Broadcasting Cos. Inc., 27 NY3d at 52), but the "affidavit" submitted by plaintiff in support of his cross motion is unsworn and of no probative value (see CPLR 3211 [c]; 3212 [b]; Enos v Werlatone, Inc., 68 AD3d 713, 714 [2009]).

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

Ray v. JP Morgan Chase Bank, N.A. · filed 2016-12-14(a)(7)

In assessing a motion under CPLR 3211 (a) (7), a court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d at 88; Citigroup Global Mkts. v Infante, 134 AD3d 758 [2015]).

Under CPLR 3211(a)(7), documentary evidence must flatly contradict the complaint’s allegations to warrant dismissal; under (a)(1), it must conclusively establish a defense as a matter of law.

Constellation Energy Services of New York, Inc. v. New Water Street Corp. · filed 2017-01-17(a)(1), (a)(7)

Defendant failed to present documentary evidence that either flatly contradicts the allegations in the complaint so as to warrant dismissal pursuant to CPLR 3211 (a) (7) (see Maas v Cornell Univ., 94 NY2d 87, 91 [1999]) or conclusively establishes a defense as a matter of law so as to warrant dismissal pursuant to CPLR 3211 (a) (1) (see Leon v Martinez, 84 NY2d 83, 88 [1994]).