N.Y. C.P.L.R. § 3211

On an unsupported CPLR 3211(a)(7) motion, the court presumes the complaint’s factual allegations are true and decides whether they state a cause of action.

Bruno v. New York News, Inc. · filed 1979-03-22(a)(7)

In the absence of an answer or affirmation supportive of its CPLR 3211 (subd [a], par [7]) motion to dismiss, it must be presumed that defendant concedes the truth of every factual allegation made by plaintiff but contends that, even so, the complaint states no cognizable cause of action.

Section 3211(a)(7) permits dismissal of a complaint for failure to state a cause of action, but that dismissal was unwarranted here.

Glantz v. Scoppetta · filed 1979-04-03(a)(7)

Dismissal of the complaint pursuant to CPLR 3211 (subd [a], par 7) was unwarranted.

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

Cohn v. National Broadcasting Co. · filed 1979-04-05(a)(7)

Accordingly, the order, Supreme Court, New York County (Bloom, J.), entered March 13, 1978, granting the motion of defendants National Broadcasting Co., Inc., and Universal City Studios pursuant to CPLR 3211 (subd [a], par 7), dismissing the second cause of action and striking paragraphs 13, 21(e), 22(c) and 23 of the amended complaint, but denying the branch of the motion to dismiss the first cause of action, should be modified, on the law, to grant the motion to dismiss the first cause of action, and otherwise affirmed, without costs or disbursements on the appeal.

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

Poritzky v. Graff · filed 1979-04-06(a)(7)

Therefore, it is the holding of this court that plaintiff has failed to state a cause of action and this matter is dismissed with prejudice under CPLR 3211 (subd [a], par 7).

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

St. Paul Fire & Marine Insurance v. State · filed 1979-04-09(a)(7)

The State’s motion to dismiss the claim under CPLR 3211 (subd [a], par 7) is therefore denied.

Section 3211 permits dismissal when a complaint fails to state a recognizable cause of action and allows repleading on a proper showing under subdivision (e).

Fashion Page, Ltd. v. Zurich Insurance · filed 1979-04-10

We deem the second cause of action in the complaint in Action No. 2 to be insufficient in law. ... This cause of action fails to state in recognizable form any cause of action known to our law.

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action, including on public-policy grounds.

McCall v. Frampton · filed 1979-04-16(a)(7)

Although the defense of illegality is not included among defenses listed in CPLR 3211 (subd [a], par 5), this defense, which is commonly called the defense of public policy, is a ground for dismissal pursuant to CPLR 3211 (subd [a], par 7), failure of the pleading to state a cause of action (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3211:36, p 40; C3211:29, p 33; 4 Weinstein-KornMiller, NY Civ Prac, par 3211.25; Radnay v Schor, 41 Misc 2d 789).

CPLR 3211(a)(7) allows dismissal when a pleading fails to state a cause of action.

Rizzuto v. Vacar Construction Corp. · filed 1979-04-23(a)(7)

These allegations sufficiently state a cause of action to defeat a motion to dismiss made pursuant to CPLR 3211 (subd [a], par 7).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but sufficiently pleaded allegations withstand that motion.

Fritz v. Board of Education of Union Free School District No. 22 · filed 1979-05-07(a)(7)

Such allegations sufficiently establish a cause of action.regarding the board’s prior custom and procedure as to withstand a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7).

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

La Fleur v. Montgomery · filed 1979-05-17(a)(7)

—Order, Supreme Court, New York County, entered February 24, 1978, denying defendant’s motion to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7), unanimously modified, on the law, to the extent of reversing so much thereof as sustained the fourth and fifth causes of action, the motion is granted to the extent of dismissing the fourth and fifth causes of action and severing the second cause of action which is hereby consolidated with the accounting action brought by defendant, and, as so modified, affirmed, without costs and disbursements.

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action, while allegations are given every favorable inference when deciding whether they sufficiently state one.

Dekdebrun v. Hardt · filed 1979-05-22(a)(7)

Given the benefit of every favorable inference (see Rovello v Orofino Realty Co., 40 NY2d 633, 634), these facts are sufficient to state a cause of action for a declaration that the chairmanship of the NFTA is vacant.

Section 3211 permits dismissal of a complaint when its allegations fail to state a cause of action and requires denial when the allegations are sufficient.

McCullough v. Certain Teed Products Corp. · filed 1979-05-22

Defendant appeals from an order of Special Term which denied its motion under CPLR 3211 to dismiss plaintiff’s amended complaint. We find that the allegations of the complaint are sufficient to state the two causes of action alleged therein.

On a motion to dismiss for failure to state a cause of action, the court must deem the complaint’s allegations and the inferences from them true.

Excelsior-57th Corp. v. Feinberg · filed 1979-03-29(a)(7)

For purposes of the motion all allegations of the complaint ...and inferences therefrom must be deemed true.

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

219 Broadway Corp. v. Alexander's, Inc. · filed 1979-02-22(a)(7)

If we find that the plaintiff is entitled to a recovery upon any reasonable view of the stated facts, our judicial inquiry is complete and we must, declare the plaintiff’s complaint to be legally sufficient.

Section 3211 requires notice and an opportunity to submit evidence before dismissal for failure to state a cause of action on an alternate ground.

Yaakob v. Arnold and Marie Schwartz College of Pharmacy and Health Sciences · filed 1979-05-28

On this record petitioner cannot be deemed to have had notice that the court was considering the sufficiency of the petition, nor can it be said that the proof was complete and that petitioner had adduced whatever he would have adduced had he been aware of the alternate ground under consideration. Further, it does not appear that petitioner was afforded the opportunity to submit additional evidence on this point.

On a motion to dismiss for failure to state a cause of action, the pleading receives every favorable inference and its allegations are assumed true.

Brathwaite v. Manhattan Children's Psychiatric Center · filed 1979-06-14(a)(7)

A pleading challenged on a motion to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7) is to be "given the benefit of every possible favorable inference” (Rovello v Oroñno Realty Co., 40 NY2d 633, 634) and its allegations must, for the purpose of such contest be assumed to be true (Kober v Kober, 16 NY2d 191, 193).

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

Investors Insurance Co. of America v. Gorelick · filed 1979-06-22(a)(7)

Defendant’s motion to dismiss the third cause of action pursuant to CPLR 3211 (subd [a], par 7) is granted. Defendant, in his affidavit in support of his motion, states that he was never appointed the receiver of the Grand Concourse premises insured under Policy No. 66-1888917. Plaintiff has failed to come forward with any evidentiary material either in its moving papers or in oral argument before this court to show the existence of a cause of action against defendant on this policy of insurance. The affidavit of the attorney for plaintiff is without probative value since he is without personal knowledge of the material facts. (See Talcott, Inc. v Dayan, NYLJ, Sept. 18, 1975, p 6, col 4.) Accordingly, the third cause of action is dismissed.

Section 3211(a)(7) permits dismissal for failure to state a cause of action, with the complaint's allegations accepted as true and favorable inferences given.

Erica Trading Corp. v. Nathan Butwin Co. · filed 1979-06-27(a)(7)

Since the defendant has submitted no evidence in support of its motion, the motion must be treated as a common-law demurrer, assuming the truth of the allegations in the complaint and granting the plaintiff every favorable inference that may be drawn therefrom.

Section 3211(a)(7) permits dismissal for failure to state a cause of action, with the pleading read favorably and given every reasonable inference.

Kermisch v. Avis Rent a Car Systems, Inc. · filed 1979-07-06(a)(7)

Defendant’s original motion to dismiss plaintiff Nira’s cause of action was expanded by the court to a motion to dismiss the entire complaint on the ground of failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7). Plaintiffs claim no substantial prejudice and presented legal arguments sustaining the sufficiency of the complaint. Therefore, we treat the motion as having specified the correct grounds. On a motion to dismiss a complaint for failure to state a cause of action, the pleading must be deemed to allege whatever may be implied from its statements by reasonable intendment (Foley v D’Agostino, 21 AD2d 60), and the pleader is entitled to every favorable inference that might be drawn (Westhill Exports v Pope, 12 NY2d 491).

Section 3211(a)(7) permits dismissal only when the facts alleged cannot support the requested relief or any other relief.

Gambar Enterprises, Inc. v. Kelly Services, Inc. · filed 1979-07-13(a)(7)

Under our procedural law a complaint is deemed to allege whatever can reasonably be implied from its statements and motions to dismiss should not be granted unless it is clear that there can be no relief under any of the facts alleged in the complaint for the relief requested or for other relief (e.g., Schlottman Agency v Aetna Cas. & Sur. Co., 70 AD2d 1041).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, and a claim survives when its essential elements are sufficiently pleaded.

Mauro v. McCrindle · filed 1979-08-20(a)(7)

As here pertinent, the third-party complaint, although inartfully merging John Scala, the individual, with Scala, Inc., has sufficiently alleged that McCrindle has been held vicariously liable for injuries sustained as a result of John Scale’s personally negligent acts or omissions.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but a complaint alleging breach of the warranty of habitability through adverse impact on a tenant’s life is sufficient to survive the motion.

Blatt v. Fishkin · filed 1979-09-11(a)(7)

Landlord moves under CPLR 3211 (subd [a], par 7) to dismiss the resulting complaint for failure to state a cause of action. ... The question is whether a breach of those terms is sufficiently alleged. ... And a pleading of "adverse impact on her life” although not the statutory language in haec verba is substantially equivalent in meaning to the statutory phrase "conditions * * * detrimental to their life.” ... Motion denied.

Section 3211(a)(7) permits dismissal of a complaint that fails to state a cause of action, including when it omits facts required to support the asserted claim.

Woodley v. Butler · filed 1979-10-31(a)(7)

Rather the argument seems to be made that the complaint fails to state a cause of action (CPLR 3211, subd [a], par 7). ... The plaintiffs have overlooked CPLR article 30. ... Such allegations, therefore, must be set forth in the complaint, and with sufficient particularity "to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved” (CPLR 3013). The failure to allege the facts from which a conclusion of futility may be drawn leaves the complaint vulnerable to attack. ... The defendants’ motion to dismiss the complaint is granted to the extent only that the complaint shall be dismissed unless the plaintiffs, within 20 days after service of a copy of this order, serve an amended complaint pleading their failure to request the union to begin this action and the facts indicating the alleged futility of such a course (Labor Law, § 725, subd 1).

On a motion to dismiss for failure to state a cause of action, the court asks whether the complaint adequately pleads a cause of action.

Cromarty v. Prentice-Hall, Inc. · filed 1979-11-19(a)(7)

We consider only the question of whether on the four corners of the amended complaint, a cause of action was adequately pleaded.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true, draws favorable inferences for the plaintiff, and asks whether those allegations would warrant relief.

Long Island Region National Ass'n for Advancement of Colored People v. Town of North Hempstead · filed 1979-12-05(a)(7)

In ruling upon the adequacy of a complaint the court is not called upon to pass upon the merits of the claim made by a plaintiff. Its function is limited to determining whether a plaintiff has set forth allegations which, if true, would warrant relief in favor of the plaintiff. Furthermore, on a motion to dismiss a complaint the court is required to accept the plaintiff’s allegations as true and to afford the plaintiff the benefit of all favorable inferences which may be drawn from the facts as alleged by the plaintiff.

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

Frank H. Hiscock Legal Aid Society v. Hennessy · filed 1979-12-10(a)(7)

Plaintiff’s allegations, if accepted as true for purposes of this motion, undoubtedly state a cause of action — one which raises issues of vital concern not merely to the individual criminal defendants whom plaintiff represents, but to the entire community.

Section 3211(a)(7) requires the court to assume the complaint's factual allegations are true when deciding whether to dismiss for failure to state a cause of action.

Heimlich v. Charlton Lithographing, Inc. · filed 1979-12-21(a)(7)

The defendant also reargues its motion, pursuant to CPLR 3211 (subd [a], par 7), to dismiss the second and third causes of action for insufficiency. ... Upon the assumption that the facts stated in the complaint are true, as the court must on a motion to dismiss, the document offered is not sufficient to comply with subdivision (a) of section 8-319 of the Uniform Commercial Code.

CPLR 3211(a)(7) requires a facially challenged claim to be assessed by accepting pleaded facts as true and giving the claimant every reasonable inference.

Phillips v. State · filed 1980-01-04(a)(7)

This motion constitutes a facial attack upon the claim on the ground that it is legally insufficient. As such, for purposes of this motion, we accept the facts pleaded as true, and give claimant the benefit of every reasonable inference therefrom.

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

Brennan v. Mead · filed 1980-01-14(a)(7)

The first cause of action of plaintiffs’ complaint is sufficient to withstand a challenge pursuant to CPLR 3211 (subd [a], par 7).

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

Riverside Finance Corp. v. Coniglio Builders, Inc. · filed 1980-01-24(a)(7)

Accepting, as we must, the truth of the allegations, we find them sufficient to state a cause of action (CPLR 3211, subd [a], par 7).

Section 3211(a)(7) permits dismissal for failure to state a cause of action, while subdivisions (d) and (e) govern alternate relief based on facts presented against the motion.

Welch v. State · filed 1980-02-07(a)(7), (d), (e)

The judgment dismissing the claimant’s claim and that of her parents for failure to state a cause of action (CPLR 3211, subd [a], par 7) must be affirmed. ... The nature and extent of the State’s duty of supervision, as well as the question of whether the released prisoner’s actions were foreseeable, can be put at issue only if the claim sets forth adequate factual allegations supportive of the charge of negligence on the part of the State. Here, neither the terms and conditions of the parolee’s release are set forth nor any factual allegations as to the manner in which the State was allegedly negligent. ... Finally, we note that while alternate relief to claimant in the nature of this court’s grant of the right to replead is available under appropriate circumstances (CPLR 3211, subds [d], [e]), a review of claimants’ affidavits submitted in opposition to the State’s motion to dismiss fails to disclose any averment of facts essential to a defense of the motion. In such circumstances this court should not grant such alternate relief.

Section 3211(a)(7) permits dismissal when a pleading is legally insufficient to state a cognizable cause of action.

Edison v. Viva International, Ltd. · filed 1979-10-30(a)(7)

A motion addressed to the legal sufficiency of a pleading will fail if, from the four corners of the pleading, factual allegations are discerned which taken together manifest any cause of action cognizable at law.

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

Pyramid Co. v. Original Great American Chocolate Chip Cookie Co. · filed 1980-02-14(a)(7)

A review of the complaint indicates that plaintiff has properly pleaded a cause of action for breach of contract which, if proven, would entitle plaintiff to relief. Defendant has failed to show that the complaint is insufficient on its face or lacks underlying merit.

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

Countrywide Publications, Inc. v. Kable News Co. · filed 1980-02-19(a)(7)

The question presented is the legal sufficiency of the allegations set forth in three causes of action against Friedman for inducing Kable to breach its contract with plaintiffs. ... In any event, we are satisfied that the allegations set forth in the disputed causes of action here are insufficient.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, while subsection (e) permits an opportunity to replead.

Di Nardo v. L & W Industrial Park of Buffalo, Inc. · filed 1980-02-20(a)(7) and (e)

The trial court denied appellant’s motion to dismiss as to him pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action. ... In view of this, Special Term erred in refusing to dismiss the complaint as to appellant. However, under the circumstances of this case, plaintiff should, within 20 days of service of the order to be entered herein, be permitted to present evidence showing separate tortious conduct or personal profit on the part of appellant for the purpose of obtaining permission to replead (see CPLR 3211, subd [e]; Roberts v Finkel, 46 AD2d 878).

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

Lincoln First Bank, N. A. v. Carlson · filed 1980-03-24(a)(7)

As for the companion motion made by the third-party defendant, Marine, to dismiss the third-party complaint against it upon the ground it does not state a cause of action, it is granted. ... Defendant does not state a cause of action in his third-party action.

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

Ginsburg v. Redmond Finishing Co. · filed 1980-04-03(a)(7)

Order, Supreme Court, New York County, entered August 23, 1979, unanimously modified, on the law, to the extent of striking CPLR 3211 (subd [a], par 2) from the first decretal paragraph as the ground for dismissal and substituting CPLR 3211 (subd [a], par 7) therefor, and, as so modified, affirmed, with one bill of costs to respondents. ... We have concluded that it is unnecessary to resolve this issue in the light of the fact that plaintiff has simply failed to state a cause of action. ... Accordingly there is no basis for the sole relief sought. No cause of action is stated.

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

Collard v. Inc. Village of Flower Hill · filed 1980-04-28(a)(7)

In an action, inter alia, to declare that the defendant’s action pursuant to a "Declaration of Covenants” is arbitrary and capricious and that plaintiffs may erect a building on their property in accordance with the defendant’s zoning ordinance, defendant appeals from an order of the Supreme Court, Nassau County, dated September 12, 1979, which denied its motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed.

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

Holoness Realty Corp. v. New York Property Insurance Underwriting Ass'n · filed 1980-04-29(a)(7)

The insurer moved to dismiss the latter causes of action pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action. Special Term concluded that the bad faith allegations stated a cause of action whether the motion was considered as a motion to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7) or as a motion for summary judgment (CPLR 3211, subd [c]). We disagree. ... A review of this complaint clearly indicates that plaintiffs have failed to allege the type of misconduct that would support a claim for punitive damages. ... Whether defendant’s motion is viewed as one for summary judgment or simply a common-law demurrer it should be granted and that part of the complaint to which it was addressed should be dismissed.

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

Tyson v. Aetna Life & Casualty Co. · filed 1980-05-09(a)(7)

The motion to dismiss the second complaint should have been granted, therefore, not on the basis of CPLR 3211 (subd [a], par 4), but for failure to state a cause of action (CPLR 3211, subd [a], par 7).

CPLR 3211(a)(7) asks whether the pleading states a cause of action, rather than whether that cause of action can be proved.

Gabrielle v. Craft · filed 1980-05-15(a)(7)

It is well established that on a motion pursuant to CPLR 3211 (subd [a], par 7), the question presented is whether a cause of action has been stated, not whether the cause of action can be proved (Paul. v Hogan, 56 AD2d 723; Amico v Erie County Legislature, 64 Mise 2d 829, revd on other grounds 36 AD2d 415, affd 30 NY2d 729).

CPLR 3211(a)(7) requires denial of a motion to dismiss when the pleading's factual allegations, taken together, show any legally cognizable cause of action.

Etterle v. Excelsior Insurance · filed 1980-05-23(a)(7)

A motion to dismiss a pleading for failure to state a cause of action will fail, "if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see, also, Melito v Interboro-Mutual Ind. Ins. Co., 73 AD2d 819).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, but a vague complaint may survive when its allegations adequately apprise the defendant of the claim.

Lerman v. Lerman · filed 1980-06-06(a)(7)

The first ground for dismissal is that the complaint fails to state cause of action in conversion. This court does not agree. ... A reading of the four corners of the complaint, when coupled with the previous dealings of the parties hereto and the prior Tennessee order, adequately apprises defendant of the nature of the cause of action asserted. More precision may be obtained by way of a bill of particulars and other discovery devices.

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

Strain v. Seven Hills Associates · filed 1980-06-24(a)(7)

Accordingly, the order of the Supreme Court, New York County (Schwartz, J.), entered July 13, 1979, which granted defendants’ motion to the extent of dismissing the first cause of action of the amended verified complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7) and otherwise denied defendants’ motion to dismiss the action on the ground of forum non conveniens and to strike certain allegations of the amended verified complaint as prejudicial or scandalous and which granted plaintiff’s motion for leave to serve the amended verified complaint, modified, on the law, to the extent of reversing the dismissal of the plaintiff’s first cause of action and denying defendants’ motion to dismiss the first cause of action of the amended verified complaint, and, as so modified, affirmed, without costs and without disbursements.

Under CPLR 3211(a)(7), a cause of action may be dismissed for failure to state a cause of action, and pleaded allegations are accepted as true when the motion lacks extrinsic proof.

Cellar of Jeans "N" Jewels, Inc. v. Rose & Kiernan, Inc. · filed 1980-07-10(a)(7)

Since defendants’ motion to dismiss plaintiff’s second cause of action under CPLR 3211 (subd [a], par 7) was not supported by extrinsic proof, the only issue before Special Term was whether it stated a cause of action (cf. Rovello v Orofino Realty Co., 40 NY2d 633; Wolcott v Broughton, 57 AD2d 1022). Despite plaintiff’s failure to oppose the motion, we conclude that it does and reverse Special Term’s order. ... If proven, plaintiff would be entitled to recover (see 29 NY Jur, Insurance, §§ 457-468) and, therefore, the instant cause of action may not presently be dismissed for legal insufficiency. Order reversed, on the law, and motion denied, without costs.

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

Cunningham v. State · filed 1980-07-24(a)(7)

Taken together with claimant’s assertion that the prosecutor’s actions were malicious, this allegation states a cause of action for abuse of process (Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397), and since the act in question was performed in the prosecutor’s investigative capacity, it is not protected by absolute prosecutorial immunity (Lee v Willins, 617 F2d 320).

Section 3211(a)(7) permits dismissal when a complaint is legally insufficient, while the court accepts the pleaded factual allegations as true.

Sherman v. Manhattan Ford Lincoln-Mercury, Inc. · filed 1980-09-09(a)(7)

For the purpose of this motion, the factual allegations as to the actual miles obtained by plaintiff must be accepted as true. Nevertheless, the complaint is legally insufficient.

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

Segal v. Justice Court Mutual Housing Cooperative, Inc. · filed 1980-10-02(a)(7)

For all of the above reasons, the plaintiff’s motion for summary judgment is denied and pursuant to CPLR 3211 (subd [a], par 7) plaintiff’s second cause of action is dismissed for failure to state a cause of action.

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

Lyons v. New American Library, Inc. · filed 1980-10-16(a)(7)

For these reasons, reversal of the order denying defendant’s motion to dismiss the first cause of action is mandated.

Section 3211(a)(7) permits dismissal when the alleged facts do not fit within any cognizable legal theory.

Small v. Memorial Hospital · filed 1980-10-20(a)(7)

Thus, it is this court’s duty to determine simply whether the facts as alleged fit within any cognizable legal theory.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, with its allegations treated as true and every reasonable inference drawn for the pleader when no affidavits are submitted.

Miller v. Davis · filed 1980-10-31(a)(7)

On a motion such as this where no affidavits are submitted, the allegations of the pleading are deemed true, and the pleader is entitled to every inference that may be drawn from the allegations contained in the complaint. (See Siegel, New York Practice, § 265.) ... Accordingly, the motion of the defendants will be granted dismissing the second cause of action of the complaint for failure to state a cause of action. (CPLR 3211, subd [a], par 7.)

CPLR 3211(a)(7) permits dismissal when the complaint and motion affidavits show no viable cause of action against the defendant.

Jones. v. Consolidated Edison Co. · filed 1980-12-01(a)(7)

Based upon the allegations set forth in the complaint and the affidavits of the parties in support of the motions, it is clear that Special Term properly dismissed the seventh cause of action, the only one involving defendant Bankers Trust.

Section 3211(a)(7) permits dismissal when the complaint fails to plead facts sufficient to sustain its causes of action.

Iovinella v. General Electric Credit Corp. · filed 1980-12-11(a)(7)

The defendant, by cross motion, sought dismissal of the entire complaint under CPLR 3211 (subd [a], par 7). Special Term denied plaintiff’s motion to amend and granted defendant’s cross motion to dismiss the complaint. We concur with Special Term’s conclusion that the plaintiff has failed to set out facts sufficient to sustain any of the causes of action pleaded.

On a motion under CPLR 3211(a)(7), the inquiry is whether the plaintiff has a cause of action, not whether the complaint properly states one.

Hawkins v. McCluskey · filed 1980-12-12(a)(7)

Nonetheless in a motion made under CPLR 3211 (subd [a], par 7) the inquiry is whether the plaintiff actually has a cause of action, not whether he has properly stated one (Guggenheimer v Ginzburg, 43 NY2d 268; Kelly v Bank of Buffalo, 32 AD2d 875).

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s allegations are true and reads the pleading as a whole with fair and reasonable intendment.

Fletcher v. Greiner · filed 1980-12-17(a)(7)

Defendant also seeks to dismiss each of the causes of action in the instant complaint pursuant to CPLR 3211 (subd [a], par 7). A pleading, the sufficiency of which is being tested, is deemed to allege whatever can be implied from its statements by fair and reasonable intendment and the whole of it must be considered (Walkovszky v Carlton, 18 NY2d 414,419). All of the allegations for the purpose of the motion must be assumed to be true (Barr v Wackman, 36 NY2d 371, 375; Tobin v Grossman, 24 NY2d 609, 612). ... The instant complaint meets these tests.

A counterclaim may be dismissed under CPLR 3211(a)(7) when it is insufficient on its face and affidavits show no reasonable possibility of establishing a cause of action.

Buffalo Seminary v. McCarthy · filed 1980-12-19(a)(7)

While their motion is one brought under CPLR 3211 (subd [a], par [7]) which has not been converted into a motion for summary judgment, the counterclaim is insufficient on its face and there appears from the affidavits no. reasonable possibility that defendants can establish a cause of action.

A motion to dismiss under Section 3211(a)(7) is premature when a significant factual dispute remains over the complaint's allegations.

McKnight v. Joyce · filed 1981-01-22(a)(7)

Of course, if there is any significant dispute regarding the facts alleged by plaintiffs, the motion seeking dismissal at this stage of the proceedings must be deemed premature.

Section 3211(a)(7) permits dismissal only when the facts alleged in the complaint are insufficient to establish a cause of action.

Horan v. Cold Spring Construction Co. · filed 1981-01-23(a)(7)

Dismissal in accordance with CPLR 3211 (subd [a], par 7) is an extraordinary relief that will be granted only when it is clear that the facts alleged in the complaint are insufficient to establish a cause of action.

CPLR 3211(a)(7) requires denial of a motion to dismiss when the allegations state a cause of action under any legal theory.

Greene v. New England Mutual Life Insurance · filed 1981-02-09(a)(7)

A court should thus deny a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) if the allegations make out a cause of action cognizable under any theory of law ... However, even under the most liberal construction of defendant’s allegations, the defense and counterclaim are insufficient as a matter of law on the particular facts pleaded.

On a motion to dismiss under § 3211(a)(7), the pleading must be liberally construed.

David J. Cogan Management Co. v. Lipset · filed 1981-01-08(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) the pleading must be liberally construed. Applying this standard, defendant-respondent has sufficiently alleged causes of action for libel and slander both as counterclaims against plaintiffs and as separate causes of action against the third-party defendant.

When a motion to dismiss addresses an entire complaint, the complaint is sustained if one cause of action is sufficient.

Long Island Region National Ass'n for the Advancement of Colored People v. Town of North Hempstead · filed 1981-03-02(a)(7)

Defendants’ prior motion to dismiss was addressed to the entirety of the complaint and, therefore, when a single cause of action therein was found to be sufficient, the complaint, as a whole, was properly sustained (see Quinn v Cannabis Haircutters, 72 AD2d 765).

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

In re the Estate of Piccione · filed 1981-03-12(a)(7)

A motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) is addressed to the legal sufficiency of a pleading (Rovello v Orofino Realty Co., supra). Such a motion should be granted only where the pleadings fail to state in some recognizable form any cause of action known to our law (Dulberg v Mock, 1 NY2d 54). The petition does set forth a cause of action against Data Control Systems, Inc., and the motion to dismiss is therefore denied with leave to move for summary judgment following service of Data Control’s answer.

On a motion to dismiss for failure to state a cause of action, the movant concedes every pleaded fact and every inference that may be drawn from it.

Burns Jackson v. Lindner · filed 1981-03-31(a)(7)

A party moving to dismiss a complaint on the ground that a cause of action has not been stated concedes for the purposes of such motion every fact pleaded and every inference that may be drawn.

CPLR 3211(a)(7) does not permit dismissal when resolving whether the pleaded services support the claim requires a trial.

McCall v. Frampton · filed 1981-04-13(a)(7)

Whether her assertions are correct, and whether such services were the predominant factor in the bargain, or rather, were only incidental to the formation of the relationship between the defendant and the plaintiff, are questions which cannot be determined on the pleadings or affidavits but must await a trial.

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

Lullo v. Dennehy · filed 1981-04-20(a)(7)

The defendants move to dismiss on the grounds of failure to state a cause of action (CPLR 3211, subd [a], par 7). ... Accepting the complaint as true for the purposes of considering the motion to dismiss (Penato v George, 52 AD2d 939) the ex-wife and her mother owned the property as joint tenants with right of survivorship until September 19, 1977, when the property was transferred into the mother’s sole name.

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

Phillips v. Cahill Gordon & Reindel · filed 1981-05-11(a)(7)

Defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action is granted. ... Accordingly, the entire complaint fails to state a legally cognizable cause of action and must be dismissed.

Section 3211(a)(7) does not permit dismissal when an ambiguous contract requires resolution by a finder of fact.

Hellenic Greek Orthodox Church of St. George v. City of Schenectady · filed 1981-05-14(a)(7)

Where a contract contains ambiguities which need to be resolved on the merits by a finder of facts, such issues should not be resolved by pretrial motion (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68).

A third-party complaint alleging concurrent negligence should not be dismissed at the pleading stage when the extent of each party’s responsibility cannot yet be determined.

Getzelman v. Lacovara · filed 1981-06-08(a)(7)

Moreover, we should not at the pleading stage be quick to dismiss the third-party complaint. ... We therefore reverse and deny the motion to dismiss.

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

New York Fruit Auction Corp. v. City of New York · filed 1981-06-11(a)(7)

In view of these most critical omissions, the complaint fails to state a cause of action. Therefore, the branch of the motion under CPLR 3211 (subd [a], par 7) must be granted.

A complaint alleging that fraudulent leases were used to meet a cooperative conversion plan’s tenant-purchase threshold states a cause of action under CPLR 3211(a)(7).

McGee v. Lepow · filed 1981-06-11(a)(7)

The sponsor moved to dismiss for failure to state a cause of action (CPLR 3211, subd [a], par 7). Special Term, apparently viewing the motion as one for summary judgment, dismissed the complaint. Not only does the complaint state a cause of action, but issues are raised as to whether Holzberger and Rosenfeld were tenants in occupancy on the critical date and also as to whether their leases, for otherwise uninhabitable and vacant apartments, are bona fide or, rather, instruments by which to perpetrate fraud.

Section 3211(a)(7) permits dismissal when a complaint fails to allege conduct by the defendant that violates the plaintiff’s rights and offers only a conclusory claim of wrongdoing.

Barsella v. City of New York · filed 1981-06-11(a)(7)

As .to defendant City of New York, the complaint fails to allege what the city did or threatens to do that is a violation of plaintiff’s rights. The allegation that the city issued a demolition permit “in contravention of its own regulations” is entirely conclusory in the absence of some showing of what regulation was supposed to have been contravened and the respect in which it was contravened.

On a motion to dismiss for failure to state a cause of action, the court may review the entire complaint to test each cause of action when the pleadings are cumulative.

Matco Electric Co. v. Plaza Del Sol Construction Corp. · filed 1981-06-18(a)(7)

Furthermore, since plaintiff’s pleadings are cumulative, the entire complaint may be reviewed for purposes of testing the sufficiency of each cause of action.

A motion to dismiss for failure to state a cause of action may challenge a pleading that is defective on its face or use affidavits and other permissible proof to show that a pleaded claim lacks merit.

Hudson View Properties v. Weiss · filed 1981-07-17(a)(7)

A motion to dismiss for failure to state a cause of action may lie if the pleading is defective on its face, or, even if the claim is perfectly pleaded, if, upon affidavits and other permissible proof, the movant is able to go behind the pleading and establish that it lacks merit (Siegel, New York Practice, §265; Kelly v Bank of Buffalo, 32 AD2d 875).

Section 3211(a)(7) permits dismissal based on whether the complaint states a cause of action, without resolving the ultimate facts.

Wayne S. v. County of Nassau · filed 1981-07-27(a)(7)

Initially, we emphasize “that on ¿ 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”.

On a motion to dismiss for failure to state a cause of action, the court assesses the complaint’s allegations; whether the plaintiff can ultimately prove them is a separate question.

State v. Monarch Chemicals, Inc. · filed 1981-08-10(a)(7)

The complaint does state causes of action. Whether plaintiffs eventually can prove one or more causes of action is not now before the court.

On a motion to dismiss for failure to state a cause of action, the petition’s alleged facts are taken as true and viewed in the light most favorable to the petitioner.

Stapf v. Flacke · filed 1981-09-14(a)(7)

For the purposes of this motion, “the facts alleged in the petition are deemed to be true and are considered in the light most favorable to petitioner (Matter of Nistal v Hausauer, 308 NY 146; Matter of Board of Educ. v Allen, 32 AD2d 985).” (Matter of Rappl & Hoenig Co. v New York State Dept. of Environmental Conservation, 61 AD2d 20, 22, affd 47 NY2d 925.)

Section 3211(e) permits a failure-to-state-a-cause-of-action defense to be reserved for a later pleading, if permitted, but requires the defendant to identify the pleading defect when the defense is challenged.

Ruvolo v. Frobin · filed 1981-12-01(e)

While CPLR 3211 (subd [e]) permits this claim to be reserved to a “later pleading, if one is permitted”, when the defense is challenged the affected defendant must come forward and indicate the defect, if any, in pleading. Frobin has failed to do so.

The defense of failure to state a cause of action under CPLR 3211(a)(7) may serve as a basis for summary judgment.

Lautner v. Catarelli · filed 1982-01-07(a)(7)

Furthermore, the defense of failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) may serve as the basis for summary judgment.

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

Andrews v. County of Otsego · filed 1982-01-08(a)(7)

However, at this stage of the proceedings all of the complaint allegations are deemed true, and the pleader is entitled to every favorable inference that may be drawn. ... Liberally construed, the complaint states a cause of action against the county for negligent supervision.

Under CPLR 3211(a)(7), allegations that plaintiffs acquired an easement were sufficient to resist dismissal for failure to state a cause of action.

Mihalko v. Blood · filed 1982-01-21(a)(7)

Accordingly, we hold that the averments of the second, third and fourth causes of action are adequate to resist defendants’ CPLR 3211 (subd [a], par 7) motion to dismiss for failure to state a cause of action.

Under CPLR 3211(a)(7), requests for relief pleaded as separate causes of action may be left in the complaint when treating them as requests causes no prejudice.

Wegman v. Wegman · filed 1982-02-04(a)(7)

Finally, there is merit to defendant’s claim that what plaintiff has pleaded as causes of action “Second” through “Sixth” are not in fact causes of action but requests for relief. If they are understood as such, there is nothing to be gained from their dismissal and no prejudice to defendant in allowing the complaint to stand as pleaded.

On a CPLR 3211(a)(5) motion, the court liberally construes the pleadings and treats their allegations as true for purposes of the motion.

Pitt v. City of New York · filed 1981-11-12(a)(5)

For the purpose of this motion, the pleadings, liberally construed, are deemed proven.

Section 3211(a)(7) permits a complaint to survive a motion to dismiss when its allegations meet the applicable pleading standards.

Traub v. Barber · filed 1982-02-18(a)(7)

Order, Supreme Court, New York County (Shainswit, J.), entered July 16, 1981 denying defendants’ motions to dismiss the complaints pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action, etc., is unanimously affirmed, with costs. Special Term explicitly stated that it was not treating these motions to dismiss as motions for summary judgments, and neither do we. We think enough is stated in the pleadings to meet the pleading standard set forth in CPLR 3013 and 3016.

Section 3211(a)(7) permits dismissal of a third-party complaint that fails to state a valid cause of action against the third-party defendant.

Hartford Accident & Indemnity Co. v. Ryder Truck Rental, Inc. · filed 1982-02-25(a)(7)

Michellen’s cross motion to dismiss the third-party complaint for failure to state a cause of action should have been granted. The complaint in the main action asserts no claim against Ryder, the third-party plaintiff, and the cross claims all relate to duties under the insurance policies. Therefore, Ryder has not pleaded any valid cause of action against Michellen.

A complaint can state a cause of action against an employer without expressly saying its employee acted within the scope of employment when the allegations support that inference.

Steinberg v. Monasch · filed 1982-03-30(a)(7)

In light of the aforesaid it is clear that Special Term erred in holding that the complaint did not state a cause of action against Reliance Group, Inc., because it did not use the specific language that defendant Abatiello acted within the scope of his employment.

On a motion to dismiss for failure to state a cause of action, the complaint and any additional submissions from the plaintiff receive their most favorable reading unless the motion is converted to one for summary judgment.

Arrington v. New York Times Co. · filed 1982-04-07(a)(7)

In this connection, it must be remembered that the motion to dismiss, one made under CPLR 3211 (subd [a], par 7), was never converted by notice to one for summary judgment as permitted by CPLR 3211 (subd [c]). In this procedural posture, the allegations of a complaint, supplemented by a plaintiff’s additional submissions, if any, must be given their most favorable intendment (see Rovello v Orofino Realty Co., 40 NY2d 633).

Section 3211(a)(7) permits dismissal without prejudice of an alimony modification petition that fails to allege a substantial change in circumstances; allegations in counsel’s opposition cannot cure the petition.

Reusch v. Reusch · filed 1982-04-09(a)(7)

However, even if true, these allegations cannot bootstrap an inadequate petition. To reiterate, we find that the petition fails to state a cause of action and, accordingly the respondent’s motion to dismiss the modification petition is granted without prejudice to a renewal of the petition upon proper grounds (CPLR 3211, subd [a], par 7).

Section 3211(a)(7) permits dismissal for failure to state a cause of action even when the movant cites a different ground for dismissal.

Yorkshire House Associates v. Lulkin · filed 1982-05-05(a)(7)

Dismissal may be, and is, called for pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action. Even if the movant has failed to specify the correct provision, the court has the power to so consider it and, if called for, may dismiss an action pursuant to a provision not argued by the movant.

On a motion to dismiss for failure to state a cause of action, the court assumes the allegations are true and gives them every reasonable favorable inference.

Rome-Floyd Residents Ass'n v. Flacke · filed 1982-05-08(a)(7)

Assuming for the purposes of this motion the truth of petitioners’ allegations, and giving them every favorable inference which can reasonably be drawn from these allegations, it is nevertheless apparent that no factual issues which would require a hearing have been raised in this proceeding, and that the sole issue here presented is a question of law which has been thoroughly presented and argued by the parties. The court may properly conclude, therefore, that this is solely a matter of statutory construction, and that petitioners have failed to state a cause of action upon which relief may be granted.

CPLR 3211(a) permits dismissal when a complaint fails to state a cause of action, despite a factual dispute about possession of the property sought.

Northglen Capital Corp. v. Competex, S.A. · filed 1982-05-27(a)

Order, Supreme Court, New York County (Kirschenbaum, J.), entered March 4, 1981, which denied the motion of the defendants (other than Competex, S. A.) to dismiss the complaint as to them pursuant to CPLR 3211 (subd [a]), unanimously reversed, on the law, with costs and disbursements, and the motion granted. ... However, such issue need not be. considered, because it is clear that the complaint fails to state a cause of action against the law firm.

Section 3211(a)(7) permits dismissal of causes of action that fail to state a claim.

Geddes v. Princess Properties International, Ltd. · filed 1982-06-15(a)(7)

— Order, Supreme Court, New York County (Kirschenbaum, J.), entered April 16, 1981 denying defendants’ motion to' dismiss various causes of action in the second amended complaint, is unanimously modified, on the law, to the extent that the third and fifth causes of action in the second amended complaint are dismissed pursuant to CPLR 3211 (subd [a], par 7) and 3016 (subd [a]), and the order is otherwise affirmed, without costs.

Section 3211(a)(7) permits dismissal of causes of action based on inadequate allegations of misrepresentation or conclusory pleading.

New York Fruit Auction Corp. v. City of New York · filed 1982-06-23(a)(7)

Finally, because the representations claimed permeated all the causes of action, including the otherwise conclusorily pleaded one based on unconscionability, the Appellate Division properly dismissed all four pursuant to CPLR 3211 (subd [a], par 7).

Under CPLR 3211(a)(7), adequate allegations of usury withstand a motion to dismiss, leaving whether usury occurred for trial.

Rhee v. Dahan · filed 1982-06-25(a)(7)

As to the branch of the motion under CPLR 3211 (subd [a], par 7) (failure to state a cause of action), the court finds that all causes of action herein assert claims cognizable under the laws of this State. Adequate allegations have been set forth in support of the basic underlying cause of action for usury, sufficient to withstand this motion to dismiss.

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

Susser v. Fried · filed 1982-09-20(a)(7)

In deciding this motion, the court assumes, as it must, the truth of the allegations in the complaint and accords them every reasonable inference.

CPLR 3211(a)(7) permits dismissal when allegations against corporate officers fail to state a cause of action for inducing their corporation’s breach of contract.

Citicorp Retail Services Inc. v. Wellington Mercantile Services Inc. · filed 1982-10-25(a)(7)

These allegations failed to state a cause of action against the third-party defendants and their motion to dismiss the third-party complaint pursuant to CPLR 3211 (subd [a], par 7) should have been granted.

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

Burba v. Rochester Gas & Electric Corp · filed 1982-11-09(a)(7)

Thus, even accepting the allegations of the complaint as true, as we must, plaintiffs fail to state a cause of action for intentional infliction of emotional distress.

On a motion to dismiss for failure to state a cause of action, the court takes the allegations as true and draws reasonable inferences in the pleader’s favor.

Sanders v. Winship · filed 1982-11-18(a)(7)

Whatever an ultimate trial may disclose as to the truth of the allegations, on such a motion, a court is to take them as true and resolve all inferences which reasonably flow therefrom in favor of the pleader.

On a motion to dismiss under CPLR 3211(a)(7), the court assesses whether the complaint’s allegations state a cause of action.

Weis v. Selected Meat Packers, Inc. · filed 1983-01-06(a)(7)

In a CPLR 3211 (subd [a], par 7) motion to dismiss for failure to state a cause of action, we must address the sufficiency of the allegations of the complaint.

Section 3211(a)(7) requires a complaint to be sustained if the alleged facts could entitle the plaintiff to recover.

MacDonald v. Howard · filed 1983-01-13(a)(7)

If in any aspect upon the facts alleged plaintiff is entitled to recover, the complaint must be sustained (Mateo Elec. Co. v Plaza Del Sol Constr. Corp., 82 AD2d 979).

On a motion to dismiss under CPLR 3211, the court construes the facts in the plaintiff’s favor.

Crisafulli v. Battaglioli · filed 1982-10-21

Construing the facts in favor of plaintiff on this motion to dismiss, it appears that defendants had agreed to assume plaintiff’s obligation to the bank.

On an unconverted motion to dismiss under CPLR 3211(a)(7), the court examines supplementary submissions and gives the plaintiff’s allegations their most favorable reading.

Weiner v. McGraw-Hill, Inc. · filed 1982-11-18(a)(7)

Styled as one made pursuant to CPLR 3211 (subd [a], par 7) after joinder of issue, as permitted by CPLR 3211 (subd [e]), and never having been converted to one for summary judgment as permitted by CPLR 3211 (subd [c]), the motion required the court to examine any supplementary submissions to the end that plaintiff’s allegations be given their most favorable intendment (Arrington v New York Times Co., 55 NY2d 433, 442; Guggenheimer v Ginzburg, 43 NY2d 268, 272).

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

Blitman Construction Corp. v. Kent Village Housing Co. · filed 1983-01-18(a)(7)

On a motion to dismiss a complaint for legal insufficiency, we must accept the facts alleged as true and determine simply whether those facts fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484).

On a CPLR 3211 motion to dismiss for facial legal insufficiency, the court reads the pleading's allegations fairly and reasonably.

Harden, S.P.A. v. Commodore Electronics Ltd. · filed 1982-11-18

Giving to the allegations in the pleadings a fair and reasonable interpretation, we believe them to be legally sufficient.

Under CPLR 3211(a)(7), the court determines whether the pleading states a cause of action without resolving the ultimate facts.

Memory Gardens, Inc. v. D'Amico · filed 1983-01-27(a)(7)

Since Special Term broadly considered the motion under CPLR 3211 (subd [a], par 7), under which the court is concerned with whether the pleading states a cause of action rather than any ultimate determination of the facts (see Rovello v Orofino Realty Co., 40 NY2d 633), the issue presented was whether privilege is a complete defense to plaintiffs’ action. ... Special Term correctly found that this statement, if made, could be interpreted to infer malice as its basis, thus finding the complaint did state a cause of action.

Under CPLR 3211(a)(7), a malicious prosecution claim may be dismissed when the complaint alleges an indictment but no facts indicating that it was procured through fraud, perjury or suppression of evidence.

Doles v. City of New York · filed 1983-01-31(a)(7)

The city argues, however, that to the extent that the order under review dismissed that claim, it should nonetheless be affirmed on the basis of an alternative argument submitted to Special Term, namely, that the complaint fails to state a cause of action for malicious prosecution (CPLR 3211, subd [a], par 7). We agree. ... Accordingly, to the extent that the complaint purportedly asserted a cause of action for malicious prosecution, it was properly dismissed.

On a motion to dismiss for failure to state a cause of action, the plaintiff receives every favorable inference, and dismissal is improper if the pleaded facts indicate a cause of action.

Reifenstein v. Allstate Insurance · filed 1983-02-28(a)(7)

In considering the legal sufficiency of these allegations, plaintiff must be given the benefit of every possible favorable inference ... and the complaint should not be dismissed if “upon examination of the four corners of the pleading * * * the factual allegations contained therein indicate the existence of a cause of action”.

On a motion to dismiss under CPLR 3211(a)(7), the court ordinarily accepts the complaint’s allegations as true and denies dismissal if the plaintiff might reasonably prove facts supporting a claim.

Saratoga Polo Ass'n v. Adirondack Trust Co. · filed 1983-03-17(a)(7)

On a CPLR 3211 (subd [a], par 7) motion, in order to succeed, defendant must convince this court that “nothing the plaintiff might reasonably be expected to prove would help him; that the plaintiff simply does not have a claim.” (Siegel, New York Practice, § 265, p 325) and, for purposes of a paragraph 7 motion, especially when it attacks the pleadings on its face, the allegations of the pleadings are ordinarily deemed true.

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s allegations are true, construes them liberally for the plaintiff, and considers the bill of particulars.

Frederick v. Frederick · filed 1983-03-24(a)(7)

All of the allegations of the complaint are assumed to be true and are to be most liberally construed in favor of plaintiff (Bervy v Hotaling, 88 AD2d 735). The allegations contained in the bill of particulars must also be taken into account (Nader v General Motors Corp., 25 NY2d 560).

Section 3211(a)(5) does not warrant dismissal when the complaint does not clearly show whether the action is for breach of contract or malpractice.

Ulrich v. Shatkin · filed 1983-04-01(a)(5)

It does not clearly appear from the face of the complaint whether the gravamen of the action is for breach of contract or malpractice. For this reason Special Term properly denied the motion to dismiss under CPLR 3211 (subd [a], par 5).

On a motion to dismiss for failure to state a cause of action, pleaded facts are presumed true and receive every favorable inference.

Roberts v. Pollack · filed 1983-04-07(a)(7)

On a motion addressed to the sufficiency of a complaint the facts pleaded are presumed to be true and accorded every favorable inference.

Section 3211(a)(7) permits dismissal of causes of action that fail to state cognizable claims for relief.

Tudor v. Riposanu · filed 1983-04-07(a)(7)

We also find the ninth, eleventh and thirteenth through fifteenth causes of action are legally insufficient in that they fail to state cognizable claims for relief and should have been dismissed under CPLR 3211 (subd [a], par 7).

On a motion to dismiss for failure to state a cause of action, the court accepts the alleged facts as true and sustains the complaint if any view of those facts or reasonable inferences states a claim.

Bowers v. County of Essex · filed 1983-04-07(a)(7)

For the purposes of this motion to dismiss the complaint against the defendant, Savel, 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(a)(7) permits dismissal for failure to state a cause of action even when summary judgment is unavailable.

Yalkowsky v. Shedler · filed 1983-05-24(a)(7)

Order, Supreme Court, New York County (Galligan, J.), entered December 14, 1982 granting defendant Shedler’s cross motion for summary judgment dismissing the complaint, is unanimously modified, on the law, to the extent that the third decretal paragraph of the order is vacated and the motion for summary judgment is denied, and the complaint is dismissed as against said defendant for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7) and the order is otherwise affirmed, without costs.

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

State v. General Motors Corp. · filed 1983-06-08(a)(7)

Assuming the allegations of the complaint to be true as the court must on this motion ... the court finds that a cause of action has been stated for suppression and concealment of a material fact.

Under CPLR 3211(a)(7), vague and conclusory allegations that are too speculative do not save a complaint from dismissal.

O'Riordan v. Suffolk Chapter · filed 1983-06-13(a)(7)

Plaintiffs’ vague and conclusory allegations are too speculative to save their complaint from dismissal.

On a motion to dismiss for failure to state a claim, the court assumes the complaint's allegations are true and, when the motion presents only the complaint's sufficiency, does not consider allegations in the plaintiff's responding papers.

Niagara Mohawk Power Corp. v. City School District · filed 1983-06-14(a)(7)

This motion presents only the sufficiency of the complaint, however, and for that purpose we must assume the truth of the allegations contained in it, without reference to the allegations in plaintiff's responding papers (cf. CPLR 3211, subd [c]).

On a motion under CPLR 3211(a)(7), the court construes the complaint liberally to determine whether it states a cause of action.

Beil v. Russo · filed 1983-06-15(a)(7)

On a motion to dismiss a complaint the court must construe the pleading liberally.

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

Burns Jackson Miller Summit & Spitzer v. Lindner · filed 1983-06-16(a)(7)

The conclusion that the statute is not exclusive requires that we consider the common-law causes of action asserted in the two complaints, the allegations of which are for purposes of such consideration deemed true (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.29). We conclude, for the reasons spelled out below, that neither complaint sufficiently states a cause of action.

A petition alleging arbitrary, capricious, and bad faith dismissal can state a claim sufficient to defeat a motion to dismiss under CPLR 3211(a)(7).

Bergamini v. Manhattan & Bronx Surface Transit Operating Authority · filed 1983-06-21(a)(7)

Considered as a whole, the petition presents a claim that petitioner’s termination was arbitrary, capricious and in bad faith sufficient to sustain denial of the motion to dismiss.

Section 3211(a)(7) permits dismissal when a complaint’s conclusory allegations fail to state a cause of action.

117 East 24th Street Associates v. Karr · filed 1983-06-23(a)(7)

defendants’ motion to dismiss the complaint is granted, and the complaint is dismissed in toto for failure to state a cause of action under CPLR 3211 (subd fa], par 7), without prejudice to an application by plaintiff at Special Term on affidavits which shall comply with CPLR 3211 (subd [e]) for leave to serve an amended complaint alleging adequately factual causes of action.

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

Schwarz v. Village of Hastings-on-Hudson · filed 1983-07-11(a)(7)

Accordingly the complaint was properly dismissed pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action.

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

Meagher v. Metropolitan Life Insurance · filed 1983-06-03(a)(7)

For the purposes of this motion, the complaint must be construed in a light most favorable to the plaintiff.

On a motion to dismiss for failure to state a cause of action, the plaintiff must allege the necessary acts but need not proffer proof of them.

Sassower v. Finnerty · filed 1983-07-25(a)(7)

Although appellant does not have to proffer proof of affirmative acts to defeat a motion under CPLR 3211 (subd [a], par 7), absent an allegation that Surrogate. Signorelli procured the publication by affirmative acts, the second cause of action asserted in the amended complaint fails to state a cause of action against him.

Section 3211(a)(7) asks whether the plaintiff has pleaded a viable cause of action; actual damages are not determined at this stage.

Banks v. Leef · filed 1983-09-19(a)(7)

At this stage in the proceedings, the court is not concerned and cannot determine whether or not plaintiff actually sustained damages either of a minor or major nature. The sole question involves whether or not plaintiff has properly pleaded viable causes of action.

On a motion to dismiss for failure to state a cause of action, the court considers any valid cause of action discernible from the complaint, even if the plaintiff did not plead that legal theory.

Ayala v. Jamaica Savings Bank · filed 1983-10-03(a)(7)

Although plaintiff herein did not purport to plead any cause of action in her complaint on the basis of an implied private right of action under the FDIC regulations for Jamaica’s alleged violation of the disclosure requirements of 12 CFR 329.4 (f), the court has considered whether such an implied private right of action exists since, if any valid cause of action can be discerned from the four corners of a complaint, the complaint should not be dismissed for failure to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the court may dismiss when the movant shows that a material fact alleged is false and no significant dispute exists about it.

Blair v. 305-313 East 47th Street Associates · filed 1983-10-25(a)(7)

Upon a motion to dismiss under CPLR 3211 (subd [a], par 7), if the movant can demonstrate that any material fact the pleader claims to be a fact is not a fact at all, and that no significant dispute can be said to exist regarding it, the court may grant the motion (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:25, p 31). Such is the case here.

On a motion to dismiss for failure to state a cause of action, failure to submit the hospital’s by-laws does not prevent a finding that the complaint states a cause of action.

Chalasani v. Neuman · filed 1983-11-21(a)(7)

We further note that plaintiff’s failure to submit a copy of the by-laws to Special Term does not preclude a finding that the complaint states a cause of action.

A complaint survives a motion to dismiss for failure to state a cause of action if, liberally construed, it states a recognizable cause of action.

Union Brokerage, Inc. v. Dover Insurance · filed 1983-11-22(a)(7)

The test of the sufficiency of a complaint is whether, liberally construed, it “states, in some recognizable form, a cause of action known to the law”.

Under CPLR 3211(a)(1) and (7), proof that an attorney commenced the underlying action does not warrant dismissal when the complaint states a malpractice claim based on the attorney’s subsequent conduct.

Beer v. Florsheim · filed 1983-07-21(a)(1), (a)(7)

The complaint clearly sets forth a cause of action that defendant did not exercise an ordinary and reasonable degree of care and skill with respect to plaintiffs’ suit against the City of New York. Accordingly, Special Term properly denied defendant’s motion to dismiss.

On a motion to dismiss for failure to state a cause of action, the court must draw all inferences favorable to the plaintiff.

Katz v. American Technical Industries, Inc. · filed 1983-08-29(a)(7)

In considering a motion to dismiss a complaint, a court must draw all inferences favorable to the plaintiff.

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

Peduto v. Durr · filed 1983-11-04(a)(5)

Whether defendant actually did so advise plaintiffs is not now before us; on a motion to dismiss, the allegations in the complaint are assumed true (Morone v Morone, 50 NY2d 481, 484).

CPLR 3211(a)(7) tests whether a pleading states a cause of action, not whether the claim can be proved.

De Pan v. First National Bank · filed 1983-12-15(a)(7)

The inquiry on a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) is whether a cause of action has been stated, not whether a cause of action can be proved (Gabrielle v Craft, 75 AD2d 939).

A court deciding a motion to dismiss for failure to state a cause of action may not resolve a disputed merits issue before the plaintiff has an opportunity to prove its case.

Envirogas, Inc. v. Consolidated Gas Supply Corp. · filed 1983-12-16(a)(7)

By dismissing the complaints, Special Term resolved the crucial issue in the litigation on the merits without affording plaintiff an opportunity to prove its case (see Hurley v Hurley, 50 NY2d 78, 83).

On a motion to dismiss for failure to state a cause of action, the plaintiff need not present evidentiary facts supporting the complaint’s allegations.

Palmisano v. Modernismo Publications, Ltd. · filed 1983-12-16(a)(7)

Because defendants’ motions were to dismiss, rather than for summary judgment, plaintiff had no obligation to show evidentiary facts to support the allegations in his complaint (see Scacchetti v Gannett Co., 90 AD2d 985, 986).

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

Bickett v. Buffalo Bills, Inc. · filed 1983-12-21(a)(7)

Before interposing an answer, the Bills challenge the legal sufficiency of the complaint on its face, thus for purposes of this motion, the allegations are deemed to be true, and all favorable inferences which may be drawn or reasonably implied from the complaint enure to the benefit of the plaintiff (Underpinning & Foundation Constructors v Chase Manhattan Bank, 46 NY2d 459; Foley v D’Agostino, 21 AD2d 60).

On a motion under CPLR 3211(a)(7), the court liberally construes the complaint and asks whether it states a recognizable cause of action.

Sanshoe Trading Corp. v. Mitsubishi International Corp. · filed 1984-01-09(a)(7)

On a motion to dismiss the complaint for failure to state a cause of action, the inquiry is limited to whether the complaint, liberally construed, “ ‘states in some recognizable form any cause of action known to our law’ ”.

On a motion to dismiss for failure to state a cause of action, the court asks whether a cause of action is stated, not whether it can be proved.

Magee v. Landers · filed 1984-01-24(a)(7)

It is well established that ón a motion pursuant to CPLR 3211 (subd [a], par 7), the question presented is whether a cause of action has been stated, not whether the cause of action can be proved.

On a motion to dismiss for failure to state a cause of action, the court views the complaint’s allegations in the light most favorable to the plaintiff.

James v. Saltsman · filed 1984-02-21(a)(7)

Appeal by defendants from an order of the Supreme Court, Westchester County (Daronco, J.), entered July 23,1982, which denied their motion to dismiss the five causes of action pleaded in the tenant’s amended verified complaint for legal insufficiency pursuant to CPLR 3211 (subd [a], par 7). ... Viewing the allegations of the complaint in the perspective most favorable to the plaintiff, we conclude that the facts alleged are legally sufficient to state a cause of action for breach of the implied warranty of habitability (cause of action No. 1), wrongful constructive eviction predicated upon the landlords’ breach of the covenant of quiet enjoyment and plaintiff’s vacatur of the apartment (cause of action No. 2), intentional infliction of emotional distress (cause of action No. 4), and negligence (cause of action No. 5).

CPLR 3211(a)(7) permits dismissal when the complaint and the plaintiff’s response to the motion fail to state a cause of action for the requested relief.

Kaufman v. International Business Machines Corp. · filed 1984-03-20(a)(7)

Plaintiff’s complaint and submissions in response to defendant’s motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) have demonstrated that plaintiff has not stated a cause of action against defendant for which the requested relief can be granted.

On a motion challenging the facial sufficiency of a complaint, the court assumes the plaintiff’s allegations are true.

Weintraub v. Brown · filed 1983-12-30(a)(7)

This case came to us in the posture of a facial challenge to the legal sufficiency of the causes of action stated in the complaint. Consequently, we assume plaintiffs’ allegations to be true (see Becker v Schwartz, 46 NY2d 401, 408).

On a motion to dismiss under CPLR 3211(a)(1), (5), or (7), the court accepts the complaint’s allegations as true.

New York Telephone Co. v. Mobil Oil Corp. · filed 1984-02-21(a)(1), (a)(5), (a)(7)

On a motion to dismiss a complaint for failure to state a cause of action or upon the ground of the Statute of Limitations or upon the basis of documentary evidence, the court is required to accept as true the allegations of the complaint since the motion is addressed to the pleadings (CPLR 3211, subd [a], pars 1, 5, 7; Rovello v Orofino Realty Co., 40 NY2d 633).

On a motion to dismiss under CPLR 3211(a)(7), a plaintiff need not establish an evidentiary basis for the complaint’s allegations.

Matherson v. Marchello · filed 1984-03-26(a)(7)

Because there is no requirement that the plaintiff establish an evidentiary basis for the allegations of the complaint on a motion to dismiss made pursuant to CPLR 3211 (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Holly v Pennysaver Corp., 98 AD2d 570), the constitutional limitations on damages recoverable in a defamation action do not furnish a predicate for sidestepping the question of the branch of the law of defamation involved, the question to which we now return.

A libel complaint alleging loss of reputation states a claim without pleading specific pecuniary damages.

Blumenstein v. Chase · filed 1984-03-26(a)(7)

In his complaint in the instant action, plaintiff has alleged that he suffered actual injury, i.e., loss of reputation, as a result of the claimed libel. ... However, it cannot be said that the complaint fails to state a cause in libel for the reason that plaintiff has failed to plead actual injury (Hogan v Herald Co., supra).

A complaint need not state a measure of damages, but it must allege facts from which recoverable damages can be inferred.

Kensington Publishing Corp. v. Kable News Co. · filed 1984-04-17(a)(7)

While “[t]here is no requirement that the measure of damages be stated in the complaint so long as facts are alleged from which damages may properly be inferred” (A. S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 383), here no facts are alleged from which any properly recoverable damages may be inferred.

When evidentiary material is considered on a motion to dismiss for failure to state a cause of action, the question is whether the plaintiff has a cause of action, not merely whether the complaint states one.

Futterman v. New York State Nurses Ass'n · filed 1984-05-01(a)(7)

“When evidentiary material is considered [on a CPLR 3211 (subd [a]) motion], the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one”

CPLR 3211 permits dismissal for failure to state a cause of action, with alleged facts assumed true and the complaint construed liberally for the plaintiff.

Credit Alliance Corp. v. Arthur Andersen & Co. · filed 1984-05-03

Since the defendant elected not to answer, but rather moved to dismiss for failure to state a cause of action, the fundamental principle applies that “every fact alleged must be assumed to be true and the complaint liberally construed in plaintiff’s favor” (Barr v Wackman, 36 NY2d 371, 375).

A motion under CPLR 3211(a)(7) attacks the sufficiency of the pleading and does not provide a basis for res judicata or summary judgment.

Albert G. Ruben & Co. v. Fritzen · filed 1984-05-31(a)(7)

We do not think it appropriate on appeal to treat the motion as some other kind of motion, and in particular, as a motion under CPLR 3211 (subd [a], par 7), which would merely attack the pleading as defective — and not be a basis for res judicata (175 East 74th Carp, v Hartford Acc. & Ind. Co., 72 AD2d 521, revd on other grounds 51 NY2d 585; Allston v Incorporated Vil. of Rockville Centre, 25 AD2d 545) or summary judgment (Werfel vZivnostenska Banka, 287 NY 91, 93).

On a motion to dismiss for failure to state a cause of action, the court construes the complaint liberally and assumes its factual allegations are true.

K.S.L.A. Construction Corp. v. Paccione · filed 1984-06-04(a)(7)

Construing the complaint liberally in favor of the plaintiff and assuming the truth of the factual allegations contained therein (see MacKay v Pierce, 86 AD2d 655), it sufficiently states a cause of action for breach of contract by the individual defendant to withstand a CPLR 3211 (subd [a], par 7) motion to dismiss (cf. Walkovszky v Carlton, 18 NY2d 414).

On a CPLR 3211 motion to dismiss, the court takes the complaint’s factual allegations as true.

Klostermann v. Cuomo · filed 1984-03-27

The background details of each action are briefly outlined, the facts being taken from the allegations in the complaints which, in reviewing these motions to dismiss, are taken as true (see Sanders v Winship, 57 NY2d 391, 394).