N.Y. C.P.L.R. § 3211

A complaint should survive a motion to dismiss for insufficiency if its facts show some wrong for which the plaintiff is entitled to relief.

Barad v. Bank of Commerce · filed 1966-01-06(a)(7)

While a complaint should not be dismissed as insufficient if it sets forth facts and circumstances constituting some wrong for which a plaintiff is entitled to relief, there are no allegations in the instant complaint which can reasonably be construed as showing that there was a conversion of funds and that the bank knowingly participated in such conversion or otherwise acted in bad faith, to the damage of the estate.

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s allegations are true and applies liberal pleading rules.

O'Reilly v. Cahill · filed 1966-06-09(a)(7)

For the purposes of this motion, the court must assume these statements to be true, and bearing in mind the liberalized rules of pleading under CPLR, I do hot think enough has been shown to warrant dismissing the complaint on its face at this stage of the proceedings.

Section 3211(a)(7) permits dismissal when a complaint fails to allege a cause of action, even if the plaintiff has one.

Shea v. Esmay · filed 1966-06-14(a)(7)

Based upon the original complaints, amended complaints and particularly upon the indications of the plaintiffs as to what the proof will show at the trial, it is concluded that the plaintiffs have causes of action for assault and battery, although they have failed to allege the same. ... Accordingly, the motions to dismiss the amended complaints for failure to state causes of action are granted as to both theories upon which plaintiffs have based their complaints.

On a motion to dismiss under CPLR 3211(a)(7), the court asks whether the complaint states a cause of action, not whether the plaintiff can prove it.

Jones v. County of Herkimer · filed 1966-07-22(a)(7)

In a motion to test the legal sufficiency of a complaint, the question posed is whether a cause of action has been stated, not whether it can be proved. ... The complaint sets forth facts sufficient to constitute a cause of action against the Village of Frankfort. Accordingly, its motion is denied.

On a motion to dismiss for failure to state a cause of action, factual allegations are assumed true, but conclusory allegations need not be.

Dollinger v. Dollinger · filed 1966-10-14(a)(7)

In a motion of this nature, testing the legal sufficiency of the complaint, the allegations of fact must be assumed to be true, except those of a conclusory character, which are present in this pleading.

CPLR 3211 permits dismissal for failure to state a cause of action when a claim rests on a bare assertion without supporting allegations.

Gomillion v. State · filed 1966-11-03(a)(7)

This bald assertion, without express or implied elaboration or explanatory allegation fails to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the court reads the complaint favorably and liberally to determine whether its allegations state a valid claim.

Walkovszky v. Carlton · filed 1966-11-29(a)(7)

Reading the complaint in this case most favorably and liberally, we do not believe that there can be gathered from its averments the allegations required to spell out a valid cause of action against the defendant Carlton.

Section 3211(a) permits dismissal when the complaint’s allegations do not establish a basis for equitable relief.

George Campbell Painting Corp. v. Reid · filed 1966-11-03(a)

Order entered on March 21, 1966, granting defendants’ cross motion to dismiss the complaint pursuant to CPLR 3211 (subd. [a]) to the extent only of staying the action for a permanent injunction, pending a. final determination of the article 78 proceeding instituted by plaintiff in this action against defendants in this action, unanimously modified on the law and on the facts, with $50 costs and disbursements to defendants-respondents-appellants and complaint dismissed. The- complaint is insufficient because plaintiff is subject to the contractual agreements it made and because on the present allegations plaintiff does not establish a ease for equitable relief.

When a CPLR 3211(a)(7) motion seeks to dismiss an entire complaint, one sufficient cause of action requires denial of the motion as to the defendants against whom that cause is stated.

Great Neck Associates v. Incorporated Village of Great Neck Estates · filed 1966-06-06(a)(7)

However, we find the third cause of action sufficient as against the defendant village and the defendant trustees in their official capacities. Hence, we need not reach the question of the sufficiency of the first and second causes as against these latter defendants, since the sufficiency of one cause of action as against them requires denial of the motion to dismiss the entire complaint as to them (Griefer v. Newman, 22 A D 2d 696).

CPLR 3211(a) permits dismissal when a complaint does not state a cause of action.

Rook Hill Sewerage Disposal Corp. v. Town of Thompson · filed 1966-12-30(a)

The complaint should have been dismissed on the grounds that it does not state a cause of action.

CPLR 3211(a)(7) permits dismissal of a cross claim that alleges only a hypothetical future right to indemnification and no facts showing a present entitlement.

Vescera v. Dancy · filed 1967-02-06(a)(7)

Here the owner is alleging a hypothetical cause of action as a basis for indemnification rather than a presently existing one against the operator. The claim over on this asserted ground is, therefore, premature, and fails to allege any facts, as pleaded, that would entitle the owner to be indemnified.

On a motion to dismiss for failure to state a cause of action, the court looks to the substance of the complaint rather than its form.

Kaufman v. Sweigard · filed 1967-02-21(a)(7)

Upon a motion made pursuant to CPLR 3211 (subd. [a], par. 7), the function of the court is to “look to the substance rather than the form” (Foley v. D’Agostino, 21 A D 2d 60, 64).

On a CPLR 3211(a)(1) motion treated as a motion for judgment on the pleadings, the pleaded facts are deemed true and the pleading is liberally construed.

Norman Co. v. County of Nassau · filed 1967-04-03(a)(1)

In our opinion, the issue as to whether the complaint states a cause of action should await the development of proof, and should not have been resolved, as it was, on motions made pursuant to CPLR 3211 (subd. [a], par. 1) which, by agreement of the parties, was treated as the equivalent of a motion for judgment on the pleadings. On such motions, as conceded, the facts stated in the pleading are deemed to be true, and the pleading is to be liberally construed.

On a motion to dismiss under CPLR 3211(a), the court looks to the pleading's allegations when considering its sufficiency and jurisdictional questions.

McCollum v. Billings · filed 1967-04-25(a)

In considering the sufficiency of the complaint and jurisdictional questions thereunder we must look to the allegations set forth in the pleading.

A CPLR 3211(a)(7) motion attacks the face of the pleadings; allegations of actual malice can suffice to defeat dismissal of a libel complaint at that stage.

Corr v. Ottaway Newspapers-Radio Inc. · filed 1968-02-13(a)(7)

For the purposes of the instant motion, which attacks only the face of the pleadings, the allegations charging actual malice are sufficient to take this case outside the scope of the rule announced in that case.

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

Town of Onondaga v. Central School District No. 1 · filed 1968-01-24(a)(7)

On a motion such as this, the court generally is limited only to consideration of the allegations of the complaint.

Under CPLR 3211(a)(7), a complaint sufficiently states a cause of action against individuals when it alleges that they conducted the business in their individual capacities.

Walkovszky v. Carlton · filed 1968-02-05(a)(7)

In a negligence action to recover damages for personal injury, defendant Carlton appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County, dated August 10, 1967, as denied his motion to dismiss the amended complaint on the ground that it fails to state a cause of action against him (CPLR 3211, subd. [a], par. 7). Order affirmed insofar as appealed from, with $30 costs and disbursements and with leave to appellant to serve an answer to the amended complaint within 20 days after service of a copy of the order entered hereon with notice of entry. In our opinion, the amended complaint sufficiently alleges a cause of action against appellant, i.e., that he and the other individual defendants were conducting the business of the taxicab fleet in their individual capacities.

On a motion to dismiss for failure to state a cause of action, the court decides the complaint’s sufficiency from the pleadings without requiring proof of its allegations.

Cohn v. Lionel Corp. · filed 1968-04-04(a)(7)

Since this determination is made on pleadings alone, whether or not plaintiff will be able to establish his allegations by competent evidence is not a pertinent consideration.

A motion to dismiss a complaint as a whole for failure to state a cause of action must be denied in its entirety if any pleaded cause of action is sufficient.

Golden v. Wiston Corp. · filed 1968-04-09(a)(7)

If such a motion to dismiss is addressed, as here, to the pleading as a whole, it should be denied in its entirety if any cause of action pleaded is sufficient without consideration of the sufficiency of any other pleaded cause of action.

On a motion to dismiss for failure to state a cause of action, the complaint receives a liberal construction and its allegations are assumed true, but those allegations must support the requested relief.

Aetna Casualty & Surety Co. v. Garrett · filed 1968-04-27(a)(7)

Giving the allegations of the complaint a liberal construction to which plaintiff is entitled, and assuming the truth of the statements contained therein, they would not form the basis for rescinding the policy or declaring it void ab initio.

Section 3211(a)(7) asks whether the complaint states a cause of action, not whether the plaintiff is likely to prove it.

Cheyne v. Ferro · filed 1968-05-10(a)(7)

The question to be answered in motions made under CPLR 3211 (subd. [a'], par. 7) is whether a complaint properly states a cause of action and not whether the plaintiffs have any substantial hope of proving one (é Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.37).

Section 3211(a)(7) permits dismissal of a third-party complaint whose allegations, read with the main complaint, do not state a cause of action for common-law indemnification.

Ever-Last Specialty Shoppe, Inc. v. Map Realty Associates · filed 1968-05-27(a)(7)

Order reversed, on the law, with $10 costs and disbursements, and third-party complaint dismissed. In our opinion the allegations of the third-party complaint, read in conjunction with the main complaint, do not state a cause of action for common-law indemnification against the third-party defendant.

Section 3211(a)(7) provides a motion to dismiss for failure to state a cause of action; the court does not reach that ground when no such motion was made.

Heaney v. Purdy · filed 1968-06-27(a)(7)

No motion having been made under CPLR 3211 (subd. [a], par. 7) to dismiss for failure to state a cause of action, we do not pass upon that question.

Under CPLR 3211(a)(7), a complaint alleging every element of deceit withstands a motion to dismiss for failure to state a cause of action.

Calloway v. Munzer · filed 1968-07-03(a)(7)

No one of the elements in an action for deceit has been omitted from the complaint and the application under CPLR 3211 (subd. [a], par. 7) would have to be denied.

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

McCartney v. Austin · filed 1968-08-16(a)(7)

The question for determination on the defendants’ motion pursuant to CPLR 3211 (subd. [a], par. 7) is whether the complaint states a cause of action and not whether the plaintiffs have any substantial hope of proving one. The pleadings on such a motion are to be liberally construed, factual averments of the complaint are taken as true, and the court must give the plaintiffs the benefit of all reasonable inferences therefrom.

A complaint alleging that the defendant failed to provide a reasonably safe place to work states a cause of action sufficient to survive a motion to dismiss under CPLR 3211(a)(7).

Buljanovic v. Grace Lines, Inc. · filed 1968-12-12(a)(7)

Finally, and in any event, the complaint should not have been dismissed on motion since it states a cause of action bottomed on defendant’s failure to provide plaintiff a reasonably safe place to work.

On a motion to dismiss for failure to state a cause of action, factual allegations are assumed true, but legal conclusions are not.

Kingston Trust Co. v. State · filed 1968-05-08(a)(7)

While the complaint alleges that Sepreio became a subcontractor of Johnson, on a motion of this kind only statements of fact, not legal conclusions, are assumed to be true.

Section 3211(a)(6) and (7) permits dismissal of counterclaims and third-party causes that cannot properly be interposed or fail to state a cause of action.

Valmart Food Buying Service, Inc. v. Sterngass · filed 1968-05-13(a)(6), (a)(7)

In our opinion the motions to dismiss the counterclaims and third-party causes should have been entertained as motions brought pursuant to CPLR 3211 (subd. [a], pars. 6, 7) and granted on the grounds that said counterclaims and causes may not properly be interposed in the action and fail to state a cause in favor of respondent.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and may disregard later examination testimony.

Tobin v. Grossman · filed 1968-06-28(a)(7)

For purposes of this appeal, we do not rely on the evidence adduced at the examination before trial, and we adhere to the rule that the allegations of the complaint must be accepted as true (see Kober v. Kober, 16 N Y 2d 191, 193).

Section 3211(a)(7) requires denial of a motion to dismiss when the complaint’s allegations are sufficient to state a cause of action.

Barad v. Bank of Commerce · filed 1969-02-03(a)(7)

In onr opinion, the allegations in the amended complaint are sufficient to state a cause of action entitling plaintiff to relief.

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

Diamond v. Oreamuno · filed 1969-05-15(a)(7)

In reaching a decision in this case, we are, of course, passing-only upon the sufficiency of the complaint and we necessarily accept the charges contained in that pleading as true.

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

Kelly v. Bank of Buffalo · filed 1969-06-19(a)(7)

We recognize, however, that on such a motion the court is no longer limited to a consideration of the pleading itself but may consider extrinsic matter submitted by the parties in disposing of the motion.

CPLR 3211(a)(7) permits dismissal as to individual defendants when the complaint fails to state a cause of action against them.

Lac Leasing Corp. v. Dutchess Aero, Inc. · filed 1969-07-07(a)(7)

To the extent, however, that the motion sought to dismiss the complaint as to the individual defendants, it should have been granted.

A complaint that omits an essential allegation ordinarily warrants dismissal under CPLR 3211(a)(7), but the court may deny dismissal when it permits an amendment that cures the omission.

Mayes v. Harnischfeger Corp. · filed 1969-07-17(a)(7)

This is a motion by the defendant seeking to dismiss the complaint herein pursuant to CPLR 3211 (subd. [a], par. 7) upon the ground that the complaint fails to state a cause of action. ... An examination of the complaint before me reveals the absence of any such recital, which ordinarily would require me to dismiss the complaint. ... In view of the foregoing, defendant’s motion to dismiss should be and hereby is denied. Plaintiff’s cross motion to amend the complaint and bill of particulars, as set forth in his affidavit on this motion, should be and hereby is granted.

Section 3211(a)(7) does not require dismissal when the complaint sufficiently identifies the issues and the theory of relief against the defendant.

Corder v. Amalgamated Clothing Workers of America · filed 1969-11-12(a)(7)

The court concludes, in view of the aforesaid, that the first cause of action in the complaint herein sufficiently identifies the issues and indicates the theory of relief as against the defendant union. Accordingly, the motion is denied.

On a motion to dismiss under CPLR 3211, the court presumes the plaintiff’s allegations are true.

Williams v. Williams · filed 1969-01-23

It should be noted at the outset that, since this is a motion to dismiss plaintiff’s complaint under CPLR 3211, we must pre...sume that plaintiff’s allegations are true.

A complaint with sufficiently specific allegations supporting the requested relief withstands a motion to dismiss under CPLR 3211(a)(7).

Seaman v. Seaman · filed 1969-05-06(a)(7)

The motion was brought pursuant to CPLR 3211 (subd. [a], par. 7). The granting of the motion is without support in the record. Both causes of action contain sufficient specificity to render a repleading a circuitous waste of time, particularly in view of the repetitive and needlessly contentious background of this litigation.

A pleading that states a claim for relief is not subject to dismissal merely because it also includes nonactionable allegations.

Nader v. General Motors Corp. · filed 1970-01-08(a)(7)

Since, then, the first two causes of action do contain allegations which are adequate to state a cause of action for invasion of privacy under District of Columbia law, the courts below properly denied the appellant’s motion to dismiss those causes of action. It is settled that, so long as a pleading sets forth allegations which suffice to spell out a claim for relief, it is not subject to dismissal by reason of the inclusion therein of additional nonactionable allegations.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and reads them liberally in the pleader’s favor.

Bradkin v. Leverton · filed 1970-03-05(a)(7)

On this appeal from the dismissal of the complaint on motion before trial, we are called upon to say whether—accepting its allegations as true and reading them most liberally in favor of the pleader (see, e.g., Kober v. Kober, 16 N Y 2d 191, 193; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 458)—it states a cause of action.

A motion to dismiss for failure to state a cause of action must be denied when the complaint states a cause of action for fraud.

Byrnes v. National Union Insurance · filed 1970-05-26(a)(7)

Accordingly, since the complaint states a cause of action for fraud (see Jo Ann Somes at Bellmore v. Dworetz, 25 N Y 2d 112), the order appealed from.must be reversed and the motion denied.

On a motion to dismiss for failure to state a cause of action, the court considers the substance of the pleading as a whole rather than its form.

Home Reporter, Inc. v. Brooklyn Spectator, Inc. · filed 1970-06-01(a)(7)

Upon a motion under CPLR 3211 (subd. [a], par. 7) to dismiss a complaint, it is now fundamental that we look to the substance rather than to the form and that such a motion is solely directed to the inquiry of whether or not the pleading, considered as a whole, states a cause of action (Foley v. D’Agostino, 21 A D 2d 60, 64).

On a motion to dismiss for failure to state a cause of action, the court assumes the allegations can be proved and construes the complaint liberally.

Columbia Gas of New York, Inc. v. New York State Electric & Gas Corp. · filed 1970-02-09(a)

It is not our purpose on a motion testing the sufficiency of the complaint to speculate whether or not plaintiff can prove these allegations. For the purpose of this motion we assume they can. This being so, and giving the complaint a liberal construction, we conclude that it states a good second cause of action.

A complaint that states at least one good cause of action on its face defeats a motion to dismiss for legal insufficiency under CPLR 3211(a).

Carner v. City of Buffalo · filed 1970-02-12(a)

At this stage of the case the complaint should be sustained as stating on its face at least one good cause of action which is sufficient to defeat a motion to dismiss it for legal insufficiency.

A motion to dismiss for failure to state a cause of action should be denied when unresolved issues require a plenary trial.

Patterson v. Allstate Insurance · filed 1970-06-30(a)(7)

At this posture of the case we cannot say that there are not issues present requiring a plenary trial.

A motion to dismiss under CPLR 3211(a)(7) must be denied if the complaint states any known cause of action.

Catalano v. Capital Cities Broadcasting Corp. · filed 1970-07-27(a)(7)

This is the thrust of allegations in the complaint, and upon a motion of this nature, if any known cause of action is stated, the motion must be denied (Foley v. D’Agostino, 21 A D 2d 60).

Section 3211(a)(7) requires the court to treat the complaint’s allegations as true when deciding a motion to dismiss.

Mettler v. Mettler · filed 1970-10-08(a)(7)

On a motion to dismiss, ¡the allegations of the complaint must be deemed to be true for the purposes of the motion.

Section 3211(a)(7) tests whether a complaint states a cause of action, not whether the plaintiff is likely to prove it.

Amico v. Erie County Legislature · filed 1970-11-25(a)(7)

The question to be answered in a motion to dismiss made under CPLR 3211 (subd. [a], par. 7) is whether a complaint properly states a cause of action, not whether the plaintiff has any substantial hope of proving one.

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

State v. Ole Olsen, Ltd. · filed 1971-01-12(a)(7)

As to the motion to dismiss, it is a rule that in such a motion the court must accept the allegations of fact set forth in the complaint as being true.

Section 3211(a)(7) permits dismissal of a counterclaim that alleges no facts and therefore fails to state a cause of action.

Diamond v. Martin-Deichsel Leather Co. · filed 1971-07-12(a)(7)

Moreover, the counterclaim alleges no facts and, therefore, does not, as a matter of law, state a cause of action.

Under CPLR 3211(a)(7), a complaint survives dismissal if its allegations, read as a whole, state a cause of action.

Rodgers v. Sound of Music Co. · filed 1971-07-23(a)(7)

In light of the aforesaid and under the circumstances as presented on the instant motion, the complaint states a cause of action.

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

Joseph Steier, Inc. v. City of New York · filed 1970-12-07(a)(7)

For the purposes of this motion, all allegations in the complaint must be deemed to be true ... It must therefore be assumed, as alleged, that plaintiff did send a timely renewal notice in writing to defendant.

Under CPLR 3211(a)(7), a claim alleging coercion through threats of criminal prosecution can survive dismissal without pleading special damages.

Prince v. Gurvitz · filed 1971-07-06(a)(7)

Plaintiff’s first cause of action, alleging that respondent and the other defendants, by means of threats of criminal prosecution, eonspiratorially coerced plaintiff to transfer his stock in defendant Prince Chevrolet, Inc., to defendant Gurvitz and to perform certain other acts is legally sufficient ... notwithstanding that special damages are not pleaded.

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s factual allegations are true, but does not give that assumption to conclusory allegations, speculative assertions, or bare charges of fraud.

Hansen v. Ludera · filed 1971-07-15(a)

The defendants have moved to dismiss the complaint pursuant to CPLR 3211 (subd. [a]) on the ground, among others, that the complaint fails to state a cause of action. This is the traditional “non-speaking motion” and the court must assume for the purposes of the motion that the facts alleged in the complaint are true. The same assumption, however, does not apply to conclusory allegations, speculative assertions or bare charges of fraud.

On a motion to dismiss for failure to state a cause of action, the plaintiff bears the burden of showing that it pleaded a cause of action recognized by law.

Foster-Lipkins Corp. v. Suburban Propane Gas Corp. · filed 1971-11-23(a)(7)

It is the burden upon the plaintiff to show that it has pleaded a cause of action known to our law in order to prevail upon the motion (Foley v. D’Agostino, 21 A D 2d 60).

A third-party complaint fails to state a cause of action when its allegations deny the third-party plaintiff’s own liability for the injury.

Lubrano v. Contractors Supply Corp. · filed 1971-12-06(a)(7)

Hence, having denied any liability on its part for Lubrano’s injuries, Ace’s third-party complaint as against Rissil is legally insufficient (Beckerman v. Walter J. Munro, Inc., 25 A D 2d 448).

On a motion to dismiss for failure to state a cause of action, new matter cannot be considered when testing the complaint as a pleading.

Mernick v. Mernick · filed 1971-12-27(a)(7)

The complaint is sufficient on its face. The issue raised by defendant consists of new matter which may not be considered on the attack made on the complaint as a pleading.

Section 3211(a)(7) permits dismissal for failure to state a cause of action; a motion on that ground is denied when the complaint states one.

Weiner v. M. Fortunoff of Westbury, Inc. · filed 1972-01-28(a)(7)

We determine only that the complaint states a cause of action and in that respect the defendant’s motion is denied.

On a motion to dismiss for failure to state a cause of action, the pleading is liberally construed, reasonable inferences are drawn in its favor, and the merits of its allegations are not decided.

Levitt v. Rockefeller · filed 1972-03-14(a)(7)

On a motion brought pursuant to CPLB 3211 (subd. [a], par. [7]), the pleading will be liberally construed and deemed to allege whatever can be reasonably implied or ...inferred from its statements. The merits of the allegations are not in issue, and the sole criterion is whether the pleading states a cause of action and not whether the allegations can be established.

A complaint that alleges no justiciable controversy against a defendant fails to state a cause of action under CPLR 3211(a)(7), even under liberal pleading rules.

Village of Nyack v. Diamond · filed 1972-04-20(a)(7)

Therefore, the pleading is devoid of a justiciable controversy between plaintiff and the Commissioner (a necessary requirement whether the action is brought pursuant to subdivision [5] of section 429-j of the Conservation Law or CPLR 3001), and fails to state a cause of action (CPLR 3211, subd. [a], par 7) notwithstanding our liberal rules of pleading (CPLR 3026).

Under CPLR 3211(a)(7), an inartfully drawn pleading survives dismissal if it sufficiently states a cause of action.

James v. Gary Co. · filed 1972-06-19(a)(7)

Although the second cause of action concededly was inartistieally drawn, we are nonetheless of the view that under our existing liberalized rules of pleading (CPLR 3013; Practice Commentaries on CPLR 3211, Professor David D. Siegel, in McKinney’s Cons. Laws of N. Y., Book 7B, 3211:24, pp. 30-31) sufficient is shown in the pleading of that cause of action to support a cause for inducing the breach of a contract, or for interfering with a contract (cf. Hornstein v. Podwitz, 254 N. Y. 443; Tatarsky v. Wavecrest Bldg. Corp. 268 App. Div. 885; Spencer v. WABC-TV, 31 A D 2d 892; 29 ALR 3d, annos. pp. 1229, 1237-1240).

Conclusory allegations unsupported by facts in the complaint or opposing affidavit are insufficient to defeat a CPLR 3211 motion to dismiss.

Harrington v. Norco Fruit Distributors, Inc. · filed 1972-06-20

Neither the complaint nor the opposing affidavit set forth facts in support of the conclusory allegations of the complaint.

A wholly conclusory contention fails to state a ground for relief under CPLR 3211(a)(7).

Valvo v. Urban Development Corp. · filed 1972-09-05(a)(7)

Petitioner’s contention that, by buying the land in advance of the required hearing, the TJDC has committed itself to the building of the project as planned, and has foreclosed the possibility of a fair hearing, is wholly conclusory and fails to state a ground upon which relief may be granted.

A complaint that alleges only general conclusions, without facts constituting a wrong, is subject to dismissal for failure to state a cause of action even when read liberally.

Vassel v. Vassel · filed 1972-10-24(a)(7)

Even according a reasonable degree of liberality and intendment to the complaint, considered as a whole (Foley v. D’Agostino, 21 A D 2d 60; Manno v. Mutual Benefit Health & Acc. Assn., 18 Misc 2d 80), still we find that it fails to allege any facts constituting a wrong, but only general conclusions, which are insufficient to state a cause of action, thus rendering the complaint subject to dismissal (Kalmanash v. Smith, 291 N. Y. 142; Loudin v. Mohawk Airlines, 24 A D 2d 447).

A motion under CPLR 3211(a)(7) for failure to state a cause of action should be denied when the pleading sufficiently identifies the occurrence and theory of liability.

Catli v. Lindenman · filed 1972-10-30(a)(7)

Order reversed, with $10 costs and disbursements, and motion denied. ... The motion to dismiss was made pursuant to CPLR 3211 (subd. [a], par. 7), which allows such a motion on the ground that the pleading fails to state a cause of action. ... The pleadings at bar satisfy the test of particularity. Defendant Shepard Lindenman has been apprised of the occurrence and the theory upon which plaintiffs seek to hold him liable.

On a motion to dismiss under CPLR 3211(a)(7), the court assumes the petitioner’s allegations are true.

Suffolk Auto Liquidators, Inc. v. Eastern Auto Auction, Inc. · filed 1973-03-19(a)(7)

Assuming, as we must, for purposes of the motion to dismiss, the truth of petitioner’s allegations, a cause of action in favor of the judgment debtor, Eastern, accrued at the time the checks bearing the alleged forged or improper indorsements were paid by Chemical and charged against Eastern’s account.

Section 3211(a)(7) does not permit dismissal when determining the grantor’s intent requires evidence beyond the pleadings.

De Pew v. Union Free School District No. 4 · filed 1973-04-16(a)(7)

In any event, this determination should not be made on the pleadings, without the opportunity to flush out the proof.

Section 3211 permits dismissal of a counterclaim for failure to state a cause of action when the contract bars the damages it seeks.

Singer Co. v. Alka Knitting Mills, Inc. · filed 1973-04-30(a)(6)

Paragraphs 14 and 15 of the express contract clearly absolve plaintiff from any liability for consequential damages (see, also, Uniform Commercial Code, § 2-719, subd. [3]). It follows that Alka’s counterclaim should have been dismissed for failure to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the court treats the alleged facts as true and sustains the complaint if those facts or reasonable inferences from them state a cause of action.

Fischer v. City of Elmira · filed 1973-05-24(a)(7)

For the purposes of these motions to dismiss the complaint for legal insufficiency the facts alleged must be considered as true and the complaint must be sustained if on any view of those facts or reasonable inferences to be drawn from them a cause of action is stated.

Section 3211 permits dismissal when neither the complaint nor the opposing affidavit supplies facts supporting conclusory allegations.

Harrington v. Norco Fruit Distributors, Inc. · filed 1972-10-31

Order, Supreme Court, New York County, entered on February 1, 1972, denying motion pursuant to CPLR 3211 to dismiss the complaint, unanimously reversed, on the law, the motion granted, the complaint dismissed and the action severed as to defendant-appellant. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Neither the complaint nor the opposing affidavit set forth facts in support of the conclusóry allegations of the complaint.

A motion to dismiss the complaint as a whole must be denied if one cause of action is legally sufficient.

De Maria v. Josephs · filed 1973-02-13(a)(7)

Furthermore, since the motion to dismiss was addressed to the complaint as a whole, it should have been denied in its entirety once the first cause of action was sustained, without consideration of the legal sufficiency of the second cause of action (Griefer v. Newman, 22 A D 2d 696).

Under CPLR 3211, an objection that the complaint fails to state a cause of action is nonwaivable.

Covino v. Alside Aluminum Supply Co. · filed 1973-06-29(a)(7)

The objection that the pleading fails to state a cause of action is jurisdictional and consequently nonwaivable (6 Carmody-Wait 2d, Pretrial Motions to Dismiss, § 38.34, p. 404).

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s factual allegations are true and reads them liberally to determine whether they imply a cause of action.

Lotto v. New York Telephone Co. · filed 1973-08-23(a)(7)

The question posed in such a motion is not whether the plaintiff can prove its cause of action, but rather, whether „a cause of action is stated, and in testing the complaint, all of the allegations of fact must be assumed to be true, and the pleadings are deemed to allege whatever cause of action can be implied from the statements, by fair and reasonable intendment.

Section 3211 permits dismissal for failure to state a cause of action when the complaint does not make the plaintiff’s theory ascertainable, with an opportunity to replead.

Untermeyer v. Myriad Investors Corp. · filed 1973-11-08(a)(7)

The difficulty is that it cannot be ascertained from the pleading as drawn just what plaintiffs’ theory is. ... While liberality in pleading may be acceptable, it should not be carried to the point where a defendant must either invoke pretrial procedures to ascertain what a plaintiff is claiming so that a response may be drawn, or to await the trial and rulings thereat by a Trial Justice as to what the pleading means. ... In the circumstances, we feel that plaintiffs should have an opportunity, if so advised, to replead.

Section 3211(a)(7) permits dismissal before an answer when a complaint fails to state a cause of action, but a court hearing a declaratory judgment action must declare the parties’ rights.

Riccardi v. City of New York · filed 1973-12-14(a)(7)

The complaint fails to state a cause of action. CPLR 3211 (subd. [a], par. 7) permits dismissal of a complaint prior to service of an answer where the complaint fails to state a cause of action. However, in an action for a declaratory judgment, the court is required to declare the rights of the parties.

On a motion to dismiss under § 3211(a)(7), when the movant submits material outside the pleading, the court asks whether the opposing party actually has a cause of action, rather than whether it has properly pleaded one.

Rappaport v. International Playtex Corp. · filed 1974-02-14(a)(7)

... but when, as here, the moving party offers matter extrinsic to the pleading the court need not assume the truthfulness of the pleaded allegations, the criterion to be applied in such a case being whether the opposing party actually has a cause of action or defense, not whether he has properly stated one (Kelly v. Bank of Buffalo, 32 A D 2d 875; Hamilton Print. Co. v. Ernest Payne Corp., 26 A D 2d 876; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.44).

Under CPLR 3211(a)(7), a third-party complaint that states a cause of action cannot be dismissed by resolving factual issues behind its allegations.

Bell v. U Haul Co. · filed 1974-02-25(a)(7)

It was error to dismiss the third-party complaint as against the infant third-party defendant pursuant to CPLR 3211 (subd. [a], par. 7).

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

Cox v. Stretton · filed 1974-02-25(a)(7)

On this motion to dismiss the complaint on the ground that it fails to state a cause of action, the plaintiffs’ allegations must be accepted as true (Tobin v. Grossman, 24 N Y 2d 609, 612).

On a motion to dismiss for failure to state a cause of action, the court accepts material factual allegations and reasonable inferences as true and denies the motion if the alleged facts support any cause of action.

Fisher v. City of Syracuse · filed 1974-03-27(a)(7)

In considering these motions to dismiss, the court will apply the rules of liberal construction of the pleadings (Walkovsky v. Carlton, 18 N Y 2d 414; CPLR 3026); the acceptance as true of the material allegations of fact contained in the complaints and the truth of any reasonable inferences that may be drawn therefrom (Garvin v. Garvin, 306 N. Y. 118); and' that if any cause of action can be spelled out from the facts alleged, the motion must be denied (Dulberg v. Mock, 1 N Y 2d 54).

Section 3211(a)(7) requires a pleading challenged without evidentiary material to be liberally construed, including allegations fairly implied from the pleading as a whole.

Ciulla v. Lavine · filed 1974-04-03(a)(7)

When an attack is made upon a pleading without the submission of evidentiary material, the pleading will be liberally construed and ‘ ‘ deemed to allege whatever can be implied from its statement by fair intendment and the whole of it must be considered.”

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations must be accepted as true and given their fair intendment.

Grammas v. Charla · filed 1974-06-24(a)(7)

On demurrer to the legal sufficiency of a complaint, it is fundamental that all of the allegations of the complaint must be accepted as true and plaintiff is entitled to the fair intendment of the allegations thereof (Cohen v. Lionel Corp., 21 N Y 2d 559, 562).

On a motion to dismiss for failure to state a cause of action, the complaint can be sufficient even though damages remain to be proved at trial.

Ziemba v. Sternberg · filed 1974-07-05(a)(7)

The matters raised in the dissent dealing with the question of damages are in our judgment not pertinent to the question of the sufficiency of the complaint. We therefore conclude that a valid cause of action is stated; whether or not damages can be proved should await the trial of the action.

A pleading that adequately states a replevin cause of action and presents a constitutional issue survives a motion to dismiss for failure to state a cause of action.

Jones v. Banner Moving & Storage, Inc. · filed 1974-08-12(a)(7)

Defendants cross-move for an order pursuant to CPLR 3211 (subd. [a], par. 7) dismissing the pleading on the ground that it fails to state a cause of action. ... Upon careful review of the facts and issues presented on this motion and cross motion, and the authorities considered, the court concludes: (a) that the pleading attacked as insufficient adequately poses both a cause of action for replevin and a constitutional issue.

On a motion to dismiss for failure to state a cause of action, reasonable doubts about the pleadings are resolved in the plaintiff’s favor.

Jones v. Archibald · filed 1974-10-24(a)(7)

Every reasonable doubt should be resolved in plaintiff’s favor if from our examination of the pleadings we can discern that the plaintiff is entitled to some form- of relief.

Section 3211(a)(7) permits dismissal of an insufficiently pleaded claim, with leave to seek permission to amend the complaint.

Skouras v. Brut Productions, Inc. · filed 1974-11-07(a)(7)

The order, Supreme Court, New York County (Baer, J.), entered April 15, 1974, denying defendants’ motion to dismiss the sixth cause of action against defendant Brut Productions, Inc. and the complaint against defendant Faberge, Incorporated, as insufficient pursuant to CPLR 3211 (subd. [a], par. 7), should be reversed, on the law, with costs and disbursements, and the motion granted with leave to plaintiff to apply at Special Term for leave to serve an amended complaint within 10 days from the service of a copy of the order to be entered hereon with notice of entry.

On a pre-answer motion to dismiss under CPLR 3211(a)(5), well-pleaded facts are assumed correct when issue has not been joined.

Silberberg v. Haber · filed 1973-06-26(a)(5)

Before joinder of issue defendant, moved, pursuant to CPLR 3211 (subd. [a], par. 5), to dismiss the first cause of action on the ground of the Statute of Frauds, and the second cause for insufficiency. ... Since there was no joinder of issue, facts well pleaded are assumed correct.

A CPLR 3211 motion addressed to a petition as a whole must be denied in its entirety when the petition cannot be dismissed in full.

Smith v. Lavine · filed 1974-03-11

Since the motion to dismiss was addressed to the petition as a whole, it must be denied in its entirety (De Maria v. Josephs, 41 A D 2d 655).

When a motion to dismiss addresses the entire complaint, it must be denied if any cause of action is sufficiently pleaded.

Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Ass'n · filed 1974-11-18

Since the motion was addressed to the complaint as a whole, and the first two causes of action are valid pleadings, the motion was properly denied in its entirety even though the third cause of action was legally insufficient {Be Maria V. Josephs, 41 A D 2d 655; Griefer v. Newman.,, 22 A D 2d 696).

On a motion to dismiss for failure to state a cause of action, the complaint receives its most favorable interpretation, including what may be implied by fair intendment.

Block v. Landegger · filed 1974-04-18(a)(7)

We are here concerned solely with the complaint, and it is entitled, on this motion, to the most favorable interpretation, and whatever may be implied therefrom by fair intendment.

On a motion to dismiss for failure to state a cause of action, the plaintiff receives every favorable inference reasonably drawn from the complaint.

Housing & Development Administration v. Bard Management Corp. · filed 1974-05-21(a)(7)

It has been held that in a motion to dismiss a complaint for failure to state a cause of action, the plaintiff is entitled to every favorable inference that reasonably may be drawn from the complaint.

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

Bloom v. City of New York · filed 1974-06-07(a)(7)

If these allegations be proven, and for the purposes of this motion they must be conceded (Cohn v. Lionel Corp., 21 N Y 2d 559), then there is indeed a viable cause of action.

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

Keith v. New York State Teachers' Retirement System · filed 1974-12-18(a)(7)

Thus, the complaint failed to state a cause of action. ... Order modified, on the law and the facts, by granting defendant’s motion to dismiss the first and second causes of action, and, as so modified, affirmed, without costs.

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

Board of Education of Central School District No. 1 v. Homer · filed 1974-12-30(a)(7)

¡Since the complaint states a cause of action against Dr. Homer for equitable apportionment the motion .to dismiss as to him is denied.

CPLR 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Kutik v. Taylor · filed 1975-02-07(a)(7)

The complaint in the case at bar fails to set forth all of the essential elements of a cause of action and, accordingly, the motion to dismiss for legal insufficiency is granted, without prejudice to an application by plaintiff, if she be so advised, for leave to serve an amended complaint.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, and subdivision (e) permits dismissal without leave to replead.

Cullen v. Margiotta · filed 1975-02-18(a)(7)

Turning to the cross motions of all of the named defendants to dismiss the complaint, the cross motions are granted. The allegations of the complaint are fatally defective in that said allegations are totally speculative and conclusory and fail to state a cause of action against the named defendants. ... In sum, plaintiffs’ application for a preliminary injunction is denied and defendants’ cross motions to dismiss the complaint are granted, without leave to replead (CPLR 3211, subd [e]).

CPLR 3211(a)(7) permits dismissal when a complaint fails to state a cause of action.

Broome v. Horton · filed 1975-03-06(a)(7)

The third-party complaint, without such allegations, failed to state a cause of action (CPLR 3211, subd. [a], par. 7; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.44; Prosser, Law of Torts [4th ed.], §§ 30, 53; see, also, Carrillo v. Kreckel, 43 A D 2d 499).

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

Lampman v. Cairo Central School District · filed 1975-04-07(a)(7)

This is a motion by the third-party defendant to dismiss the third-party complaint and cross claims against her on the ground that they fail to state a cause of action (CPLR 3211, subd [a], par 7). ... The motion to dismiss the third-party action against Judy Lampman and to dismiss the cross claims is granted, without costs.

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

Wechter v. Wechter · filed 1975-04-22(a)(7)

In sum, taking the complaint at its face value, in the opinion of the court, it sufficiently states a cause of action, and, accordingly, defendant’s motion to dismiss it for insufficiency is denied.

Section 3211(a)(7) permits dismissal of a cause of action for failure to state a cause of action.

Randaccio v. Retail Credit Co. · filed 1975-06-06(a)(7)

Accordingly, the first two causes of action in the amended complaint should have been dismissed pursuant to defendant’s motion under CPLR 3211 (subd [a], par 7).

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

Garrett v. New York State Athletic Commission · filed 1975-06-16(a)(7)

Accordingly, the court finds that the petition states a cognizable cause of action, and respondents’ cross motion is denied.

Section 3211(a)(7) permits dismissal of a declaratory judgment claim that fails to state an identifiable cause of action.

Boryszewski v. Brydges · filed 1975-07-02(a)(7)

Accordingly, on this branch of the case we hold that petitioners have failed to state a cause of action on which declaratory relief may be granted, either in their favor or in favor of respondents. The motion to dismiss made under CPLR 3211 (subd [a], par 7) to the extent applicable to the amended petition should therefore be granted.

On a motion to dismiss for failure to state a cause of action, the court treats the allegations concerning the moving defendant as true.

Edgar v. Kajet · filed 1975-11-18(a)(7)

For the purposes of this motion, each allegation of the pleadings referring to Avis must be deemed to be true ... Accordingly, defendant Avis, Inc.’s motion to dismiss the complaint and all cross claims for failure to state a cause of action is granted in all respects.

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations are deemed true.

Wegman v. Dairylea Cooperative, Inc. · filed 1975-12-12(7)

Since this appeal is from a motion to test the legal sufficiency of the complaint, all of the allegations contained in that complaint are deemed to be true.

On a motion to dismiss for failure to state a cause of action, the court assumes the pleaded facts are true and gives the complaint every favorable inference.

Board of Education v. Farmingdale Classroom Teachers Ass'n · filed 1975-12-29(a)(7)

Assuming the truth of the facts pleaded along with every favorable inference ... and applying the above principles, we find that the complaint before us is sufficient to state a cause of action for abuse of process.

A CPLR 3211 motion for failure to state a cause of action addresses the face of the complaint unless it is treated as a motion for summary judgment.

Rosenberg v. Sassower · filed 1976-03-29(a)(7)

The order which was the basis of Special Term’s decision to apply the doctrine resulted from a denial of a motion by defendant George Sassower to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action. That motion was clearly addressed only to the face of the complaint. Furthermore, Mr, Sassower did not ask the court to treat the motion as one for summary judgment and there is no indication that Special Term decided on its own to treat the motion as such (see Mareno v Kibbe, 32 AD2d 825).

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations must be deemed true.

Brayton v. Pappas · filed 1976-05-14(a)(7)

Insofar as that motion challenged the sufficiency of plaintiff’s complaint, the allegations contained therein must be deemed to be true (Rainbow Shop Patchogue Corp. v Roosevelt Nassau Operating Corp., 34 AD2d 667).

Section 3211(a)(7) permits dismissal only when it is very clear that the claimant cannot obtain relief under any construction of the pleaded facts.

Charles O. Desch, Inc. v. State · filed 1975-12-30(a)(7)

A motion to dismiss under CPLR 3211 (subd [a], par 7) should only be granted if it is very clear that the claimant is entitled to no relief under any construction of the facts alleged in the pleadings (Richardson v Coy, 28 AD2d 640; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.44).

On a motion to dismiss under CPLR 3211(a)(7), the court must presume the complaint’s allegations are true.

Kamin v. American Express Co. · filed 1976-03-17(a)(7)

The motion to dismiss the complaint requires the court to presuppose the truth of the allegations.

On a motion to dismiss for failure to state a cause of action, the court decides the complaint's sufficiency without deciding whether the plaintiff can ultimately prove its allegations.

Park v. Chessin · filed 1976-09-02(a)(7)

Since, therefore, this determination must be made on the complaint only, the issue of whether plaintiffs will or will not be ultimately able to establish their allegations by competent evidence is one not pertinent to present consideration (Cohn v Lionel Corp., 21 NY2d 559, 560; Kober v Kober, supra).

A motion to dismiss for failure to state a cause of action does not require dismissal of claims containing elements of a cause of action merely because the complaint also contains irrelevant matter.

Cooper v. Van Cortlandt Associates · filed 1976-09-28(a)(7)

The present motion is to dismiss for failure to state a cause of action, i.e., under CPLR 3211 (subd [a], par 7), and it was not made within the 20-day period. More important, as Special Term recognized, the complaint does contain elements of a cause of action in some aspects. ... But in this case, as the complaint contains both elements of a cause of action, and unrelated and irrelevant matter, we think the interest of justice would be better served by leaving in the complaint what has substance and affirming the order striking so much of the complaint as is legally unrelated, irrelevant or plainly insufficient.

On a motion to dismiss under CPLR 3211(a)(7), the court must deem the pleading’s allegations true.

Lapidot v. State · filed 1976-12-15(a)(7)

The complaint in the Supreme Court action, handed up as a defendant’s exhibit, indicates that this may be a factual question at trial. Upon this motion the allegations must be deemed true.

Section 3211(a)(7) asks whether the complaint states a cause of action, not whether the claim can be proved.

Paul v. Hogan · filed 1977-02-25(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) the question before the court is whether a proper cause of action has been stated, not whether the cause of action can be proved (Amieo v Erie County Legislature, 64 Misc 2d 829, revd on other grounds 36 AD2d 415, affd 30 NY2d 729).

Section 3211 permits a failure-to-state-a-cause-of-action defense in an answer, but the defense may be asserted at any time even if it is not pleaded.

Riland v. Frederick S. Todman & Co. · filed 1977-03-17(a)(7), (e)

We agree with the rationale in Prompt Electrical (supra), that the defense of failure to state a cause of action may be inserted in an answer as an affirmative defense (CPLR 3211, subd [a], par 7). The pleading of that defense is, however, surplusage, as it may be asserted at any time even if not pleaded (CPLR 3211, subd [e]).

Section 3211(a)(7) permits dismissal when the complaint’s factual allegations, even if assumed true, do not entitle the plaintiff to relief.

Ascrizzi v. Kaufman · filed 1977-04-07(a)(7)

Since, therefore, plaintiffs would not be entitled to relief against the town or its individual officials, even assuming the truth of the factual allegations in the complaint, the motion to dismiss was properly granted (CPLR 3211, subd [a], par 7; cf. Rovello v Orofino Realty Co., 40 NY2d 633, 634).

On a motion to dismiss a petition for failure to state a cause of action under § 3211(a)(7), the petitioner’s allegations are presumed true.

In re the Estate of Finkle · filed 1977-05-13(a)(7)

In an application to dismiss a petition for failure to state a cause of action, the petitioner’s allegations are presumed to be true.

A motion to dismiss for failure to state a cause of action should not resolve issues that require further exploration of the facts.

City of New York v. Bettigole · filed 1977-05-19(a)

We do not think these issues should be decided on the bare face of these pleadings, but should await a further exploration of the facts.

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

Wolcott v. Broughton · filed 1977-05-26

The rule in this department is that when a motion involving whether or not a complaint states a cause of action is at issue and the parties submit affidavits and/or matters extrinsic to the pleading, the issue becomes whether or not a plaintiff has a cause of action (Rappaport v International Playtex Corp., 43 AD2d 393, 395).

On a motion to dismiss under CPLR 3211(a)(7), the court decides whether the pleading states a cause of action rather than determining the ultimate facts.

Stukuls v. State of New York · filed 1977-07-07(a)(7)

Against that background, and bearing in mind that on a motion under CPLR 3211 (subd [a], par 7) we are concerned with whether the pleading states a cause of action rather than the ultimate determination of the facts (see Rovello v Orofino Realty Co. , 40 N.Y.2d 633), we turn to the central question on this appeal: Is defendant protected by an absolute privilege or a qualified one?

Section 3211(a)(7) permits dismissal without converting the motion to summary judgment or allowing additional papers when the motion papers show no cause of action can be stated.

Davis v. Williams · filed 1977-10-03(a)(7)

In sum, no cause of action whatever has been spelled out, nor is anything shown in the motion papers demonstrating that it can be. Nor should we here relegate defendants to Special Term for notice to be given that the motion will be regarded as one for summary judgment so as to provide an opportunity for submission of additional papers. Disposition under CPLR 3211 (subd [a], par 7), is not premature.

Section 3211(a)(7) requires a liberal construction of the pleading when testing whether it states a cause of action.

Lupinski v. Village of Ilion · filed 1977-11-14(a)(7)

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) a liberal construction is applied in testing the adequacy of the pleading (see, e.g., Coutu v Otis Elevator Co., 58 AD2d 131).

On a motion to dismiss for failure to state a cause of action, the court assumes the alleged facts are true.

Howard v. Lecher · filed 1977-06-16(a)(7)

In the case now before us, we assume, as we must in connection with this motion to dismiss ... that the doctor was negligent in failing to take the proper measures to determine whether the fetus suffered from Tay-Sachs and that as a result of that negligence the parents permitted the pregnancy to run its course and the child to be born instead of seeking an abortion.

On a motion to dismiss under CPLR 3211(a)(7), courts must liberally construe the complaint.

Coutu v. Otis Elevator Co. · filed 1977-06-16(a)(7)

Applying the rule of liberal construction of pleadings (CPLR 3026), which we are required to do in examining the complaint upon a motion to dismiss under CPLR 3211 (subd [a], par 7) (Munoz v City of New York, 18 NY2d 6; Kober v Kober, 16 NY2d 191), we conclude that Special Term properly denied that portion of third-party defendant’s application which sought to dismiss the second cause of action of the complaint.

On a motion to dismiss for failure to state a cause of action, the pleading is liberally construed to include what can reasonably be implied from its statements.

Fifty States Management Corp. v. Niagara Permanent Savings & Loan Ass'n · filed 1977-07-12(a)(7)

The pleading subject to a motion made under CPLR 3211 (subd [a], par 7) is to be liberally construed and deemed to allege whatever can reasonably be implied from its statements.

A pleading challenged for legal insufficiency receives a liberal construction, but the court does not presume the pleader’s legal conclusions or statutory interpretations are true.

Atwell v. Power Authority · filed 1977-12-02(a)(7)

The court is mindful that a pleading challenged for legal insufficiency should be construed liberally as to give it every fair intendment possible. However, the court does not assume the truth of any legal conclusions drawn by the pleader or the pleader’s sole interpretation of any statutes that may be involved.

On a motion to dismiss under CPLR 3211(a)(7), the court looks to the substance of the complaint as a whole to decide whether it states a cause of action.

Feinberg v. Bache Halsey Stuart Inc. · filed 1978-02-14(a)(7)

Upon a 3211 (subd. [a], par. 7) motion to dismiss a cause of action * * * we look to the substance rather than to the form. Such a motion is solely directed to the inquiry of whether or not the pleading, considered as a whole, 'fails to state a cause of action’.

Section 3211(a)(7) permits dismissal of a complaint that fails to state a cause of action; under subsection (e), leave to amend requires a showing of good grounds for the proposed claim.

Fisher v. Schur · filed 1978-02-27(a)(7), (e)

Order, Supreme Court, New York County, entered September 26, 1977, denying defendants’ motion to dismiss the complaint, is unanimously reversed, on the law, with $60 costs and disbursements of this appeal to appellants, and the motion is granted and the complaint is dismissed pursuant to CPLR 3211 (subd [a], par 7) on the ground that the complaint fails to state a cause of action, without prejudice however to an application by plaintiff at Special Term, within 30 days after service upon respondents by appellant of a copy of the order determining this appeal, for leave to serve an amended complaint upon a proper showing pursuant to CPLR 3211 (subd [e]) sufficient to satisfy the court that plaintiff has good ground to support the cause of action proposed to be alleged in such a proposed amended complaint.

When a motion under § 3211(a)(7) addresses an entire complaint, one valid cause of action is enough to deny the motion; that rule does not apply to claims whose dismissal was not appealed.

Park v. Chessin · filed 1977-12-11(a)(7)

At the outset, the general rule should be noted that if a motion to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7) is addressed to the complaint in its entirety, the validity of any single cause of action will suffice as a ground for denial of the motion (see, e.g., De Maria v Josephs, 41 AD2d 655). However, inasmuch as the plaintiffs have failed to appeal from the dismissal of four causes of action asserted in their complaint, the general rule is not applicable in this case.

On a CPLR 3211(a)(7) motion to dismiss, the court must assume the truth of the complaint’s allegations.

Becker v. Schwartz · filed 1977-12-12(a)(7)

Assuming, as we must, the truth of plaintiffs’ allegations, that defendants were negligent in failing to give the female plaintiff sufficient information concerning her condition and alternatives so that she could reasonably decide whether she was willing to undergo the entire pregnancy and deliver the child or abort the pregnancy (see Howard v Lecher, 42 NY2d 109, 112), we hold that it was error to dismiss plaintiffs’ third and fourth causes of action (see Park v Chessin, 60 AD2d 80).

On a motion to dismiss for failure to state a cause of action, the petition's allegations must be deemed true.

Nassau Regional Off-Track Betting Corp. v. New York State Racing & Wagering Board · filed 1978-01-16(a)(7)

It is clear, according to the petition, which for the purposes of this motion must be deemed to be true, that petitioner would be embarking on a futile, wasteful and counter-productive procedure to seek to have the respondent board overturn its own rule.

On a motion to dismiss for failure to state a cause of action, a complaint survives if a liberal construction reveals a recognizable claim, even when its allegations are general.

Nutrition Foundation, Inc. v. Gitzen · filed 1978-04-13(a)(7)

Order, Supreme Court, New York County, entered May 18, 1977, granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) with leave to replead with respect to the second cause of action, unanimously modified, on the law, without costs and without disbursements, to deny the motion to dismiss the fourth cause of action and otherwise affirmed. ... Such a construction is here required since, under familiar rules, we must accord the complaint a liberal construction (CPLR 3026), and if it states a cause of action in some recognizable form, it must be sustained.

A motion to dismiss a complaint containing multiple causes of action must be denied if at least one cause of action is legally sufficient.

Bohemian Brethren Presbyterian Church v. Greek Archdiocesan Cathedral of the Holy Trinity · filed 1978-04-24(a)(7)

A motion addressed to the complaint containing multiple causes of action must be denied if one cause of action is legally sufficient (Advance Music Corp. v American Tobacco Co., 296 NY 79).

On a motion to dismiss for failure to state a cause of action, the court may accept any legal theory supported by the complaint’s allegations, but must dismiss a claim whose allegations are insufficient on their face.

Barrett v. Wojtowicz · filed 1978-05-01(a)(7)

While CPLR liberality will permit accepting any theory presented in the complaint that would qualify the allegations as a cause of action (Curren v O’Connor, 304 NY 515), in this instance, the court, even with the most tortuous stretch of reasoning, cannot find the allegations of the third cause of action to be valid nor sufficient on its face.

Under CPLR 3211(a)(7), a complaint that shows no breach of duty by a defendant fails to state a cause of action against that defendant.

Altman v. Place · filed 1978-05-25(a)(7)

Orders, Supreme Court, New York County, entered January 18, 1978, denying defendants’ motions to dismiss the complaint for failure to state a cause of action and failure to comply with the requirements of subdivision (c) of section 626 of the Business Corporation Law, are modified, on the law, to the extent that the motion of defendant IU International Corporation pursuant to CPLR 3211 (subd [a], par 7) to dismiss the complaint as against said defendant for failure to state a cause of action is granted and the complaint is dismissed as against said defendant, without prejudice to an application by plaintiff to Special Term, within 20 days after service of a copy of the order to be entered hereon, with notice of entry, for leave to replead pursuant to CPLR 3211 (subd [e]), and the orders are otherwise affirmed, without costs and without disbursements. There is no showing of any breach by defendant IU International Corp. of any duty owed to the plaintiff, a stockholder of the Anaconda Company, or to Anaconda, in connection with the sale by IU International Corp. of one of its subsidiaries to Anaconda at an allegedly grossly excessive price.

On a facial motion to dismiss for failure to state a cause of action, the court gives the complaint's allegations a most liberal interpretation.

Suffolk Housing Services v. Town of Brookhaven · filed 1978-05-29(a)(7)

Since the allegations in the second amended complaint, given a most liberal interpretation, as we are required to do when the attack is leveled against it on its face, are sufficient, that complaint states a cause of action.

Section 3211(a)(7) permits dismissal for failure to state a cause of action when no view of the facts would make the defendant liable.

Area Masonry, Ltd. v. Dormitory Authority · filed 1978-07-07(a)(7)

In an effort to collect this amount it commenced the instant action against the defendant, which moved at Special Term to dismiss plaintiffs complaint on the ground that it failed to state a cause of action (CPLR 3211, subd [a], par 7), Special Term granted defendant’s motion. ... We affirm because there is no view of the facts under which the defendant owner may be held liable to plaintiff.

Section 3211(a)(7) requires courts to construe pleadings liberally and deny dismissal unless the alleged facts could afford no relief.

Sorichetti v. City of New York · filed 1978-07-14(a)(7)

A motion to dismiss should not be granted unless it is very clear that there can be no relief under any of the facts alleged in the pleadings for the relief requested or other relief.

On a motion to dismiss for failure to state a cause of action, the court must assume the complaint’s allegations are true.

Drake v. City of Rochester · filed 1978-06-05(a)(7)

With respect to defendant county’s motion to dismiss for legal insufficiency, the allegations of plaintiffs’ complaints must be assumed true (Cohn v Lionel Corp., 21 NY2d 559).

Under CPLR 3211, a complaint is sufficient if its allegations, read together, fairly state a valid cause of action.

State v. Belt Parkway Nursing Home · filed 1978-07-05

The only inquiry in determining the sufficiency of a complaint "is whether there can be fairly gathered from all the averments the requisite allegations of a valid cause of action, cognizable by the courts of this State” (Cohn v Lionel Corp., 21 NY2d 559, 562). The court finds that the complaint does contain sufficient allegations of a valid cause of action.

A court may assess the sufficiency of an individual cause of action under CPLR 3211(a)(7) even when the motion challenges the entire complaint.

City of Hope, Inc. v. Fisk Building Associates · filed 1978-06-27(a)(7)

Notwithstanding that appellants’ challenge under CPLR 3211 (subd [a], par 7) is directed to the entire complaint, this court is not precluded from considering the sufficiency of the second cause of action under that rule, particularly in the circumstances herein that a separate challenge was made to the second cause albeit under CPLR 3211 (subd [a], par 5).

A prior dismissal for failure to state a cause of action does not by itself justify dismissing a later complaint.

Dunn v. Moss · filed 1978-07-13(a)(7)

Nor was the dismissal of a prior complaint in the same action for failure to state a cause of action (CPLR 3211, subd [a], par 7) a proper basis for Special Term’s order.

CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action even if its allegations are accepted at face value.

Bruno v. Codd · filed 1978-07-20(a)(7)

There are no issues framed by the pleadings requiring a trial because, even accepting plaintiffs’ allegations at face value, they do not make out a case.

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

Eisman v. Port Authority Trans Hudson Corp. · filed 1978-07-24(a)(7)

Therefore, taking the allegations in the complaint as true and giving plaintiff the benefit of all inferences therefrom, this court cannot state that the complaint fails to state a cause of action as a matter of law.

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

Roscoe v. Central Natinal Bank · filed 1978-09-25(a)(7)

Based on all the foregoing, the motion to dismiss the complaint herein on the ground that it fails to state a cause of action must be denied. In the absence of any supporting affidavits or other proof controverting the factual allegations contained in the complaint, the defendant concedes as true and the court must accept as true the material allegations of fact contained therein and the reasonable inferences drawn therefrom.

On a motion to dismiss for failure to state a cause of action, the court takes the plaintiff’s allegations as true when assessing whether the pleading is sufficient.

Evans v. City of Johnstown · filed 1978-10-11(a)(7)

Taking the plaintiffs’ allegations as true, as this court must, on this test of sufficiency the damages are severe to say the least, and it is impossible at this stage to say that the plaintiffs have not stated a cause of action which depends on the nature and extent of the damages.

A pleading defeats a motion to dismiss for failure to state a cause of action if it gives notice of the event giving rise to the grievance and alleges the substantive elements of the claim.

Oneonta Star Division of Ottaway Newspapers, Inc. v. Board of Trustees · filed 1979-01-25(a)(7)

The pleadings’ primary mission is to give notice of the event out of which the grievance arises. If the allegations also cover the substantive material elements that make up the particular cause of action relied on, the second requirement is met and the pleading satisfies the CPLR. The major challenge a pleading meets is a motion under CPLR 3211 (subd [a], par 7) to dismiss for failure to state a cause of action, and a pleading which meets the two stated requirements successfully defeats that motion (Siegel, NY Practice p 245).

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

Holy Spirit Ass'n for the Unification of World Christianity v. New York State Congress of Parents & Teachers, Inc. · filed 1978-08-01(a)(7)

Accepting these allegations as true, as the court must for the purposes of a motion to dismiss under CPLR 3211 (subd [a], par 7), the court finds that the adoption of Resolution No. 17 by the State PTA was not "state action” so as to be actionable under section 1983 of title 42 of the United States Code.

On a motion to dismiss for failure to state a cause of action, the court must assume the complaint’s allegations are true.

Sinhogar v. Parry · filed 1979-01-16(a)(7)

Assuming the allegations of the complaint to be true, as we must, for the purposes of the motion to dismiss (Cohen v Lionel Corp., 21 NY2d 559) this court holds that there is a factual issue as to whether or not the plaintiffs are receiving the treatment to which they are entitled.

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint’s allegations.

Akins v. Village of Potsdam · filed 1978-11-02(a)(7)

Although there is disagreement as to the facts, since we are reviewing decisions upon motions to dismiss complaints (CPLR 3211, subd [a], par 7), we will accord a liberal construction to the allegations in the complaints (Kober v Kober, 16 NY2d 191; Colton v New York Hosp., 53 AD2d 588).

Section 3211(a)(7) permits dismissal of class action allegations when the complaint and affidavits conclusively show no legal basis for class action relief.

Wojciechowski v. Republic Steel Corp. · filed 1979-01-25(a)(7)

We see no merit in plaintiffs’ contention that the motion to dismiss under CPLR 3211 (subd [a], par 7) was improper. While a decision as to the propriety of the class would ordinarily follow a motion and a hearing under CPLR 902, we find no fault with the procedure followed where, as here, it appears conclusively from the complaint and from the affidavits that there was as a matter of law no basis for class action relief.

CPLR 3211(a)(7) permits dismissal when the pleading fails to allege sufficient facts constituting a cognizable cause of action, measured from the pleading's four corners.

Lefkowitz v. Esposito · filed 1979-02-07(a)(7)

As a general rule, pleadings are broadly and liberally construed and a motion pursuant to CPLR 3211 (subd [a], par 7) will be denied if, from the four corners of the pleading, sufficient factual allegations are made which constitute any cause of action cognizable at law.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but a complaint survives a facial motion if any fair reading states a viable cause of action.

Ware v. Sand Lake Kiwanis Club, Inc. · filed 1979-02-08(a)(7)

On a motion to dismiss a complaint addressed solely to the face of the pleading, the complaint must be sustained if under any fair reading it states a viable cause of action irrespective of inartistic draftsmanship (Edwards v Codd, 59 AD2d 148).