N.Y. C.P.L.R. § 3211

A forum selection clause naming another New York county does not warrant dismissal under section 3211(a)(1) when the court retains jurisdiction.

Lowenbraun v. McKeon · filed 2012-08-22(a)(1)

Since the forum selection clause did not divest the Supreme Court of jurisdiction over the action, the Supreme Court erroneously granted those branches of the defendants’ separate motions which were pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against each of them, based on the forum selection clause.

Under CPLR 3211(a)(1), a forum selection clause cannot support dismissal when its enforceability has been rebutted and it therefore does not conclusively establish a defense.

U.S. Mdse., Inc. v. L&R Distribs., Inc. · filed 2014-11-05(a)(1)

Accordingly, the prima facie enforceability and validity of the forum selection clause has been rebutted and, therefore, that clause does not "conclusively establish[ ] a defense to the asserted claims as a matter of law" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation marks omitted]; see Adler v 20/20 Cos ., 82 AD3d at 920). Thus, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(1).

A forum selection clause does not support dismissal under CPLR 3211(a)(1) when the plaintiff shows that the clause is unreasonable and therefore does not conclusively establish a defense.

U.S. Merchandise, Inc. v. L&R Distributors, Inc. · filed 2014-11-05(a)(1)

Accordingly, the prima facie enforceability and validity of the forum selection clause has been rebutted and, therefore, that clause does not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation marks omitted]; see Adler v 20/20 Cos., 82 AD3d at 920).

A forum selection clause does not support dismissal under CPLR 3211(a)(1) when the challenging party shows that the clause is unreasonable.

U.S. Merchandise, Inc. v. L&R Distributors, Inc. · filed 2014-11-05(a)(1)

Ordered that the order is reversed, on the law, with costs, and that branch of the defendants’ motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) is denied.

A contractual forum selection clause can serve as documentary evidence supporting dismissal under CPLR 3211(a)(1).

Landmark Ventures, Inc. v. Birger · filed 2017-02-14(a)(1)

“[A] contractual forum selection clause is documentary evidence that may provide a proper basis for dismissal pursuant to CPLR 3211 (a) (1)” ... Thus, at a minimum, the court properly dismissed the first cause of action, which alleges breach of the CIPA.

Under CPLR 3211(a)(1), documentary evidence conclusively establishing that a forum selection clause requires suit elsewhere warrants dismissal.

BHRE Group, LLC v. Boger · filed 2023-05-17(a)(1)

Here, the documentary evidence submitted by the defendants conclusively established that the forum selection clause in the subscription agreement required the plaintiffs to bring the subject action in Israel ( see Fritsche v Carnival Corp. , 132 AD3d 805).

CPLR 3211(a)(2) cannot be used to enforce a forum selection clause because the clause does not deprive a New York court of subject matter jurisdiction.

Feld v. Viceroy Devices Corp. · filed 2024-07-23(a)(2)

Defendant's reliance on CPLR 3211 (a) (2) is also procedurally incorrect. ... A defendant looking to enforce a forum selection clause should employ CPLR 3211 (a) (1).

A forum selection clause may support dismissal under CPLR 3211(a)(1) for claims within its scope, but does not support dismissal of claims outside it.

Westchester Fitness, LLC v. Retrofitness, LLC · filed 2026-05-06(a)(1)

"'[A] contractual forum selection clause is documentary evidence that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1)'" (Landmark Ventures, Inc. v Birger, 147 AD3d 497, 497, quoting Lischinskaya v Carnival Corp., 56 AD3d 116, 123). ... Here, the first through sixth and twelfth causes of action are subject to the language of the forum selection clause and must be brought in the appropriate forum (see Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773; Bernstein v Wysoki, 77 AD3d at 248). However, as the seventh, eighth, ninth, tenth, and eleventh causes of action do not arise out of the franchise agreement, the forum selection clause does not apply (see Lesavoy v Brady, 242 AD3d 856, 859; cf. Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773).

A motion under CPLR 3211(a) may be denied as academic when the action has already been dismissed.

Tauman v. Gambino · filed 2015-01-21(a)

Contrary to the contention of the defendant Maria C. Gambino (hereinafter the appellant), the Supreme Court did not err in denying, as academic, her motion to dismiss the complaint pursuant to CPLR 3211 (a). The record demonstrates, and the parties concede, that the complaint that was served on the appellant had already been dismissed under the same index number by a prior order of the same court. Accordingly, since the action had already been dismissed, the court acted appropriately in denying, as academic, the appellant’s motion to dismiss it again.

CPLR 3211(a)(3)'s requirements do not apply to an objection that a divorce plaintiff has not met New York's durational residency requirement.

Stancil v. Stancil · filed 2015-02-17(a)(3)

Courts have clearly stated that the durational residency requirement is not akin to personal or subject matter jurisdiction, rather it is an additional barrier to a divorce being granted in this state (Lacks v Lacks, 41 NY2d 71 [1976]). Thus, the requirements of CPLR 3211 (a) (3) do not apply.

On a motion to dismiss for failure to state a cause of action, whether alleged negligence involved discretionary acts protected by governmental immunity cannot be determined at the pleading stage when it presents a factual question.

VILLAR, ADAM v. HOWARD, TIMOTHY B. · filed 2015-03-20(a)(7)

In the context of this CPLR 3211 motion, the issue whether defendant’s alleged acts of negligence “were discretionary and thus immune from liability ‘is a factual question which cannot be determined at the pleading stage’ ” (Mosey, 117 AD3d at 1384, quoting CPC Intl. v McKesson Corp., 70 NY2d 268, 286).

CPLR 3211 does not permit dismissal of a purchase option as violating the rule against perpetuities at the pleading stage when facts relevant to the option’s duration remain unresolved.

Protetch v. Jocar Realty Co., Inc. · filed 2024-10-29(a)(1), (7)

The motion court should not have invalidated the purchase option and dismissed the complaint at the pleading stage as violating the rule against perpetuities ( see EPTL 9-1.1).

On a motion to dismiss under CPLR 3211(a)(7) based on governmental immunity, defendants must establish at the pleading stage that the challenged conduct was governmental as a matter of law.

Connolly v. Long Island Power Auth. · filed 2018-02-20(a)(7)

Because defendants have not met their threshold burden of demonstrating that the action was governmental in the context of these pre-answer, pre-discovery CPLR 3211(a)(7) motions, we cannot say that the complaints fail to state causes of action as a matter of law.

An action dismissed for lack of personal jurisdiction under CPLR 3211(a)(8) cannot be restored to the trial calendar by motion.

Zhang v. Gerald W. Purcell Assoc., Ltd. · filed 2015-07-15(a)(8)

While such a motion is appropriate where an action is marked off or struck from the trial calendar and then dismissed pursuant to CPLR 3404 for neglect to prosecute (see e.g. Agli v O’Connor, 92 AD3d 815 [2012]), the present action was directed to be dismissed against the defendants pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction. Thus, the action could not be “restored” by way of a motion.

Section 3211(d) permits a court to deny a motion to dismiss without prejudice to renewal after discovery.

Gonzalez-Doldan v. Kaleida Health, Inc. · filed 2018-04-27(d)

Contrary to the contention of the remaining defendants, we conclude that the court providently exercised its discretion in denying the motion with respect to the remainder of the causes of action without prejudice to renew after discovery ( see CPLR 3211 [d]; see generally Herzog v Town of Thompson , 216 AD2d 801, 803 [3d Dept 1995]).

Section 3211(a)(7) does not permit dismissal of a breach-of-contract claim when reasonable competing interpretations of the contract remain.

BioPharma Credit PLC v. Biogen Inc. · filed 2024-09-27(a)(7)

The Court finds that either interpretation may be reasonable due to the ambiguity and/or breadth of the Loan Agreement. Thus, the countervailing interpretations of the relevant contractual terms preclude the dismissal of Plaintiff's claim at this stage in the litigation.

CPLR 3211 dismissal is improper when an ambiguous contract provision requires discovery to resolve legal and factual issues.

Callahan v. VBR Holdings, LLC · filed 2020-03-03

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 9, 2019, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the cause of action for breach of contract pursuant to CPLR 3211 and for a declaratory judgment in its favor, unanimously affirmed, with costs. In light of the ambiguity of the contractual provision at issue — section 7.6 of defendant's Amended and Restated Limited Liability Company Agreement — resolution of which must await discovery ( see LDIR, LLC v DB Structured Prods., Inc. , 172 AD3d 1, 5-6 [1st Dept 2019]), the motion court correctly found that legal and factual issues exist as to whether defendant effectively exercised its right to purchase plaintiffs' ownership interests in the company, given that the purchase was never consummated.

An ambiguous guaranty may require discovery rather than dismissal under CPLR 3211(a)(1) and (7).

Rivereast Apartments Investors LLC v. Gladstone · filed 2016-01-19(a)(1) and (7)

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 7, 2015, which granted defendant guarantor’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), unanimously reversed, on the law, without costs, and the motion denied. ... Thus, inasmuch as the guaranty was incorporated by reference into the lease, the signatory on behalf of the tenant was its “substantial” owner, the defendant guarantor, and the lease was further amended after assignment, discovery is warranted.

Under CPLR 3211(a)(1) and (7), an ambiguous contract provision does not warrant dismissal when the documentary evidence does not conclusively dispose of the claim.

Cronos Group Ltd. v. XComIP, LLC · filed 2017-09-19(a)(1) and (7)

Because section 9 of the RNCSA, on its face, is reasonably susceptible of more than one interpretation, the provision cannot be construed as a matter of law, the documentary evidence on which XComIP relies does not conclusively dispose of Cronos's claim, and dismissal under CPLR 3211(a)(1) and (7) is not appropriate ( see New York Univ. v Pfizer Inc. , 151 AD3d 42, 44 [1st Dept 2017]; U.S. Bank N.A. v Lightstone Holdings LLC , 103 AD3d 458, 459 [1st Dept 2013]; Telerep, LLC v U.S. Intl. Media, LLC , 74 AD3d 401, 402 [1st Dept 2010]; Fortis Fin. Servs. v Fimat Futures USA , 290 AD2d 383, 383 [1st Dept 2002]).

Competing reasonable interpretations of contractual terms do not warrant dismissal based on those terms.

Hatkoff v. Tussauds Group LLC · filed 2020-09-29(a)(1)

In any event, the contractual terms upon which the motion court based its determination are subject to competing, reasonable interpretations, and therefore dismissal was not warranted on that basis ( see Duane Reade, Inc. v Cardtronics , LP, 54 AD3d 137, 144 [1st Dept 2008]).

A CPLR 3211 motion to dismiss a contract claim should be denied when an ambiguous agreement requires further inquiry to determine its meaning.

Mak Tech. Holdings Inc. v. Anyvision Interactive Tech. Ltd. · filed 2022-12-29

Further, as long as the court cannot affirmatively decide in favor of dismissal, the matter should be explored to ascertain the proper interpretation ( see Castellano 43 NY2d at 912 ; see also LDIR, LLC v DB Structured [*5]Prods., Inc., 172 AD3d 1, 5 [1st Dept 2019]).

CPLR 3211(a)(8) does not apply to a criminal prosecution.

People v. Greentree Servicing LLC · filed 2016-01-21(a)(8)

The defendant has sought dismissal pursuant to CPLR 3211 (a) (8). As this is a criminal prosecution, the CPLR is not applicable.

CPLR 3211's civil motion to dismiss procedure is unavailable in criminal proceedings.

People v. Manupelli · filed 2008-12-19

The authority of a criminal court to dismiss an information pursuant to a pretrial motion (see CPL 170.30) does not include a motion for accelerated judgment available to civil court litigants (see CPLR 3211, 3212), and, in any event, the court had no authority to dismiss an accusatory instrument on the ground that, in its view, the People could not produce sufficient evidence to prevail at trial (e.g. People v Asher, 16 Misc 3d 89, 91 [App Term, 9th & 10th Jud Dists 2007]).

A fraud claim pleaded on information and belief survives a motion to dismiss if it gives defendants sufficient information about the alleged wrongs.

Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd. · filed 2016-04-18(a)(7)

Where, [*6] as here, information and belief-based fraud allegations state "sufficient information to apprise defendants of the alleged wrongs" they should not be dismissed under CPLR § 3211(a)(7).

A motion to dismiss under CPLR 3211(a)(7) does not make the law of the case doctrine applicable to a later summary judgment motion.

Borawski v. Abulafia · filed 2016-06-08(a)(7)

Moreover, the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action (see 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [2011]; Bernard v Grenci, 48 AD3d 722, 724 [2008]; Thompson v Lamprecht Transp., 39 AD3d 846, 847 [2007]; State of New York v Barclays Bank of N.Y., 151 AD2d 19, 20-21 [1989], affd 76 NY2d 533 [1990]).

A motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7) does not make the law of the case doctrine apply to a later summary judgment motion.

347 Central Park Associates, LLC v. Pine Top Associates, LLC · filed 2016-11-09(a)(7)

Contrary to the plaintiff’s contention, the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action (see Borawski v Abulafia, 140 AD3d 817 [2016]; Bernard v Grenci, 48 AD3d 722, 724 [2008]; State of New York v Barclays Bank of N.Y., 151 AD2d 19 [1989], affd 76 NY2d 533 [1990]).

A ruling on a CPLR 3211 motion that a claim was plausibly pleaded does not bar a later summary judgment motion challenging the claim’s factual basis.

RXR WWP Owner LLC v. WWP Sponsor, LLC · filed 2016-12-08

Our earlier holding, on a motion to dismiss, brought pursuant to CPLR 3211, that plaintiff plausibly pled a claim for lost profits, does not constitute “law of the case” barring ARC from moving for summary judgment, which is subject to a different standard of review (see Friedman v Connecticut Gen. Life Ins. Co., 30 AD3d 349, 349-350 [1st Dept 2006], mod on other grounds 9 NY3d 105 [2007]).

A ruling on a CPLR 3211 motion to dismiss does not establish law of the case for a later summary judgment motion.

Korff v. Corbett · filed 2017-11-02

We further reject plaintiff’s argument that this Court’s decision in the prior appeal from an order granting defendants’ motion to dismiss the complaint, pursuant to CPLR 3211 (a) (1), (5) and (7), dictates the outcome of this one. ... It is for this reason that “the law of the case doctrine does not apply when a motion to dismiss is followed by a summary judgment motion” (Moses v Savedoff, 96 AD3d 466, 468 [1st Dept 2012]).

A ruling on a CPLR 3211 motion to dismiss does not bind a later summary judgment ruling under the law of the case doctrine because the motions apply different standards.

938 St. Nicholas Ave. Lender LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp. · filed 2023-07-20

Nor was the court bound by the May 31, 2019 order issued in this action under the law of the case doctrine, since that order was rendered on a motion to dismiss pursuant to CPLR 3211, which applies standards different from those on summary judgment ( see Matter of Bullard , 206 AD3d 489, 489-490 [1st Dept 2022]).

On a CPLR 3211(a)(7) motion, whether a complaint pleads a necessary element is a question of law that an appellate court may consider for the first time on appeal.

Bostwick v. Credit Agricole Corporate & Investment Bank New York Branch · filed 2017-04-27(a)(7)

This Court can consider plaintiff’s argument that defendants acted in bad faith, even though it was not raised before the motion court, because “[w]hether the amended complaint pleads a necessary element of [a] claim is a pure issue of law appearing on the face of the record that may be considered for the first time on appeal” (see Basis Yield Alpha Fund Master v Morgan Stanley, 136 AD3d 136, 141 n 4 [1st Dept 2015]).

Section 3211 permits an in pari delicto defense to be resolved on the pleadings when the complaint establishes it.

FIA Leveraged Fund Ltd. v. Grant Thornton LLP · filed 2017-05-16(a)(7)

The in pari delicto issue may be resolved on the pleadings in this case (see Kirschner, 15 NY3d at 459 n 3).

Under CPLR 3211(a)(7), a complaint cannot be dismissed for failing to plead malice to rebut the common-interest privilege before defendants answer and assert that privilege as an affirmative defense.

Miller v. Appadurai · filed 2023-03-09(a)(7)

Supreme Court, however, improvidently dismissed the complaint under CPLR 3211(a)(7) on the ground that the complaint failed to plead malice sufficient to rebut the common-interest privilege, because defendants had not yet answered and asserted that privilege as an affirmative defense ( see e.g. Fletcher v Dakota, Inc. , 99 AD3d 43, 55-56 [1st Dept 2012]; Garcia v Puccio , 17 AD3d 199, 201 [1st Dept 2005]; Demas v Levitsky , 291 AD2d 653, 661 [3d Dept 2002], lv dismissed 98 NY2d 728 [2002]; Wilcox v Newark Val. Cent. School Dist. , 74 AD3d 1558, 1562 [3d Dept 2010]; see also Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc. , 148 AD3d 1418, 1420 [3d Dept 2017]; cf. Harpaz v Dunn , 203 AD3d 601, 602 [1st Dept 2022]; Sagaille v Carrega , 194 AD3d 92, 95-96 [1st Dept 2021], lv denied 37 NY3d 909 [2021]; L.Y.E. Diamonds, Ltd. v Gemological Inst. of Am., Inc. , 169 AD3d 589, 590-591 [1st Dept 2019]; O'Neill v New York Univ. , 97 AD3d 199, 212-213 [1st Dept 2012]; Green v Combined Life Ins. Co. of N.Y. , 69 AD3d 531, 531 [1st Dept 2010]).

An unpleaded statutory immunity can support a motion to dismiss under CPLR 3211(a)(7) when the barrier to suit is evident from the complaint.

Montanino v. New York City Dept. of Sanitation · filed 2025-06-04(a)(7)

Although the City defendants' immunity pursuant to the CDA was not pleaded as an affirmative defense, "'it can still support a motion to dismiss if the statute's barrier to suit is evident [*2]from the face of the complaint'" ( Ricci v Teamsters Union Local 456 , 781 F3d 25, 28 [2d Cir], quoting Klayman v Zuckerberg , 753 F3d 1354, 1357 [DC Cir]; see Word of God Fellowship, Inc. v Vimeo, Inc. , 205 AD3d 23, 26). Here, the City defendants' immunity pursuant to the CDA was evident from the face of the complaint ( see Word of God Fellowship, Inc. v Vimeo, Inc. , 205 AD3d at 26).

A court may not grant a CPLR 3211(a) motion on a ground the parties never raised or briefed without giving them an opportunity to be heard.

Frank M. Flower & Sons, Inc. v. North Oyster Bay Baymen's Assn., Inc. · filed 2017-05-17(a)

Under the circumstances of this case, we agree that the Supreme Court erred in granting the defendants’ motion on the ground of collateral estoppel, because that ground was never raised or briefed by the parties.

Section 3211(a)(7) permits dismissal of an indorsement pleading when neither the pleading nor factual submissions in opposition reveal a cause of action.

Gounder v. Progressive Credit Union · filed 2017-05-17(a)(7)

Although the formal pleading requirements of the CPLR are not applicable to indorsement pleadings ( see CCA 903), the relaxed pleading requirements of CCA 903 do not make such pleadings immune to [*2] dismissal under CPLR 3211 (a) (7) ( see Orchid Constr. Corp. v Tablada , 36 Misc 3d 138 [A], 2012 NY Slip Op 51446[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In our opinion, the Civil Court properly dismissed the action, since plaintiff neither pleaded facts nor made any additional factual submissions in opposition to defendant's motion from which any cause of action against defendant can be discerned.

A complaint should not be dismissed under CPLR 3211(a)(7) for naming a nonsuable agency when the record shows that the plaintiff effectively named the proper defendant and the allegations gave it notice.

Rohlehr v. New York City Police Department · filed 2017-06-28(a)(7)

Our review of the entire record reveals that the plaintiff intended to name, and, in effect, named, the City of New York as the party defendant. The allegations of the complaint are such that the City of New York should have known that it was the proper party defendant. Accordingly, the Supreme Court improperly granted that branch of the cross motion which sought to dismiss the complaint on the ground that the New York City Police Department was a non-suable entity.

On a CPLR 3211(a)(7) motion, the court construes the pleading liberally and draws reasonable inferences in the claimant’s favor.

924 W. End Ave., Inc. v. Kaplan · filed 2026-06-15(a)(7)

This holdover proceeding, premised upon tenants' chronic defaults in making cooperative maintenance payments, should not have been dismissed upon tenants' motion pursuant to CPLR 3211 (a)(1) and (7). Construing the petition liberally and drawing all reasonable inferences in favor of landlord ( see Leon v Martinez , 84 NY2d 83, 87—88 [1994]), the factual allegations concerning tenants' chronic failure to timely pay cooperative maintenance sufficiently stated a cognizable possessory claim.

On a CPLR 3211 motion, courts draw all inferences in the plaintiff's favor when assessing the allegations.

ALP, Inc. v. Moskowitz · filed 2022-04-12

With all inferences drawn in plaintiffs' favor, as required on a CPLR 3211 motion, it could be found that ALP paid commissions without knowledge of this disloyalty.

On a motion to dismiss an amended complaint, section 3211 requires the court to construe the complaint liberally, accept its alleged facts as true, and give the plaintiff every possible inference.

Matter of Netshoes Sec. Litig. v. XXX · filed 2020-06-02(a)(7)

On a second motion to dismiss, the "amended complaint must [] be analyzed as [] any complaint on a CPLR § 3211 motion; we construe the complaint liberally, accepting as true the facts alleged, and according plaintiff the benefit of every possible inference" ( Plaza PH2001 LLC v Plaza Residential Owner LP , 98 AD3d 89 , 99 [1st Dept 2012]).

On a CPLR 3211 motion to dismiss, the court accepts the alleged facts as true, gives the petitioner every favorable inference, and asks whether those facts support a cognizable legal theory.

Duverney v. City of New York · filed 2017-08-15

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

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the movant must initially show that the action is untimely; the opponent must raise a question of fact to defeat the motion.

Deutsche Bank National Trust Co. v. Gambino · filed 2017-09-13(a)(5)

Since the plaintiff did not commence the instant action until more than six years after January 7, 2009, Gambino sustained her initial burden of demonstrating, prima facie, that this action was untimely. In opposition, the plaintiff failed to raise a question of fact as to whether “Deutsche Bank National Trust Company As Trsutee [sic]” was a distinct entity which did not have the authority to accelerate the mortgage debt in January 2009 or was not the holder of the note when it commenced the prior foreclosure action.

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

New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp. · filed 2017-09-20(a)(7)

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

On a motion to dismiss under CPLR 3211, the court liberally construes the pleading.

Sara Myers, Eric A. Seiff v. Schneiderman · filed 2017-09-07(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87–88 [1994], citing CPLR 3026).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires a showing that a claimed material fact is not a fact and that no significant dispute exists about it.

Nelson v. Citiwide Auto Leasing, Inc. · filed 2017-10-18(a)(7)

Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Coe v Toyota Motor N. Am., Inc., 150 AD3d 667, 668 [2017]; Anglero v Hanif, 140 AD3d 905, 907 [2016]).

On a Section 3211 motion to dismiss, the court must accept the complaint’s factual allegations and reasonable inferences as true.

Reese v. Andreotti · filed 2017-10-18

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

On a CPLR 3211 motion to dismiss, the court liberally construes the complaint, presumes its factual allegations true, and gives them every favorable inference.

Demir v. Sandoz Inc. · filed 2017-11-14

Next, liberally construing the complaint, presuming its factual allegations to be true, and giving the allegations every favorable inference, as required on a CPLR 3211 motion to dismiss, plaintiff adequately pleaded a Labor Law § 740 violation against defendants in alleging that its manufacturer and procurement of chemical ingredients for defendants’ highest grossing product was not compliant with FDA regulatory requirements governing the drug’s safety and efficacy, and she need not plead an actual violation of laws or regulations (see Webb-Weber v Community Action for Human Servs., Inc., 23 NY3d 448 [2014]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must show, prima facie, that the time to commence the action has expired.

Amrusi v. Nwaukoni · filed 2017-11-15(a)(5)

“To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2016]). ... Accordingly, the Supreme Court erred in granting dismissal of the entire first cause of action as time-barred, as the defendant failed to meet her prima facie burden demonstrating that the plaintiff had commenced this action after the time in which to do so had expired.

Under CPLR 3211(a), a court treats the complaint's allegations as true and asks whether they state a cause of action.

Davis v. Scottish Re Group Limited · filed 2017-11-20(a)

Renova's prima facie test requires a factual showing, and therefore differs from New York's CPLR 3211 (a) standard which requires the court to construe all allegations in the complaint as true and mandates only that the allegations in the complaint state a cause of action (see e.g. Miglino v Bally Total Fitness of Greater N.Y., 20 NY3d 342, 351 [2013]).

On a CPLR 3211 motion to dismiss, the defendant must accept the complaint’s factual allegations as true.

Natixis Real Estate Capital Trust 2007-HE2 v. Natixis Real Estate Capital, Inc. · filed 2017-11-16

On the motion to dismiss, defendant had to accept as true the complaint’s allegation that Computershare had been duly appointed, and it was only after discovery commenced that defendant could determine whether the requirements of section 10.10 had been satisfied.

A plaintiff opposing dismissal under CPLR 3211 (a) (1) and (7) need not conclusively prove entitlement to recovery.

Michael J. Carlson, Sr. v. American International Group, Inc. · filed 2017-11-20(a)(1), (a)(7)

A plaintiff opposing a motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) does not have the burden of conclusively demonstrating his or her entitlement to recovery.

A plaintiff opposing dismissal under CPLR 3211(a)(1) and (7) need not conclusively prove entitlement to recovery.

Carlson v. Am. Int'l Grp., Inc. · filed 2017-11-20(a)(1) and (7)

A plaintiff opposing a motion to dismiss pursuant to CPLR 3211(a)(1) and (7) does not have the burden of conclusively demonstrating his or her entitlement to recovery.

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

US Bank National Ass'n v. Cohen · filed 2017-12-20(a)(3)

Further, “[o]n a defendant’s motion to dismiss a complaint based upon the plaintiff’s alleged lack of standing, ‘the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing’ as a matter of law” (DLJ Mtge. Capital, Inc. v Pittman, 150 AD3d 818, 820 [2017], quoting Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59 [2015]). Since the plaintiff had attached the consolidated note endorsed in blank to the summons and complaint at the time the action was commenced, the appellants failed to meet this burden (see Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d at 492; U.S. Bank N.A. v Guy, 125 AD3d 845, 847 [2015]). Accordingly, the Supreme Court properly denied that branch of the appellants’ cross motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against them for lack of standing.

Section 3211 permits a court deciding a motion to dismiss to consider evidentiary material to determine whether the plaintiff has a cause of action, rather than only whether the complaint states one.

Ladera Partners, LLC v. Goldberg, Scudieri & Lindenberg, P.C. · filed 2018-01-09

On this motion to dismiss pursuant to CPLR 3211, the court correctly considered defendants' evidentiary material to determine whether plaintiff had a cause of action for legal malpractice, not whether the complaint stated one ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]; Biondi v Beekman Hill House Apt. Corp. , 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]).

Section 3211 requires courts deciding a dismissal motion to construe the complaint liberally and give the plaintiff every favorable inference.

Jimerson v. State of New York · filed 2018-02-09

Upon construing the complaint liberally, and affording plaintiffs the benefit of every possible favorable inference (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we reject defendants' contention that the breach of contract cause of action is duplicative of the accounting malpractice cause of action.

Under CPLR 3211(a)(5), the defendant initially must show prima facie that the limitations period expired, after which the burden shifts to the opposing party to raise a factual issue about an exception, tolling, or timely commencement.

Berger v. Stolzenberg · filed 2018-02-21(a)(5)

A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Murray v Charap , 150 AD3d 752, 753; Wei Wei v Westside Women's Med. Pavilion, P.C. , 115 AD3d 662, 663; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780, 781; Texeria v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d at 781; Baptiste v Harding-Marin , 88 AD3d 752, 753; Williams v New York City Health & Hosps. Corp ., 84 AD3d 1358, 1359).

Section 3211 requires courts deciding a motion to dismiss to give the plaintiff every possible favorable inference and dismiss only when the defendant establishes its position as a matter of law.

Benzies v. Take-Two Interactive Software, Inc. · filed 2018-03-29

According plaintiff the benefit of every possible favorable inference, as is required on this CPLR 3211 motion, defendants have not shown as a matter of law that their interpretation of the 2012 Employment Agreement is the only reasonable one, particularly in light of the language stating that plaintiff "remains entitled to receive certain royalties [emphasis added]" as part of his "[c]ompensation."

Section 3211(a)(7) requires courts deciding a motion to dismiss for failure to state a cause of action to accept the complaint's alleged facts and opposition submissions as true.

Lohan v. Take-Two Interactive Software, Inc. · filed 2018-03-29(a)(7)

Inasmuch as this appeal arises from defendants' motion to dismiss the amended complaint, we must, among other things, "accept as true the facts alleged in the [amended] complaint and any submissions in opposition to the dismissal [application]".

CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense, while CPLR 3211(a)(7) requires accepting pleaded facts as true and asks whether they fit any cognizable legal theory.

Graphic Arts Mut. Ins. Co. v. Pine Bush Cent. Sch. Dist. · filed 2018-03-09(a)(1) and (7)

Whether the incidents set forth in the amended complaint in the underlying action were accidents present questions of fact which cannot be determined on a motion to dismiss pursuant to CPLR 3211(a)(1) and (7) ( see McGroarty v Great Am. Ins. Co., 36 NY2d at 363-364; 535 Park Ave. Realty, LLC v Park Ave. Bldg. & Roofing Supplies, LLC , 156 AD3d 744, 748). Accordingly, the Supreme Court should have denied those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, third, and fourth causes of action.

Section 3211 permits dismissal based on conclusive documentary evidence or failure to state a cause of action, applying the statute's pleading and evidentiary standards.

Alden Global Value Recovery Master Fund, L.P. v. KeyBank N.A. · filed 2018-03-29(a)(1) and (a)(7)

Thus, KeyBank and Berkadia have conclusively established a defense to plaintiff's asserted claims as a matter of law ( Leon v Martinez , 84 NY2d at 88) and the motion court correctly granted both defendants' CPLR 3211(a)(1) motions to dismiss. ... Therefore, the motion court properly granted defendants' motions to dismiss on CPLR 3211(a)(7) grounds ( see Leon v Martinez , 84 NY2d at 87-88; 219 Broadway Corp. v Alexander's, Inc. , 46 NY2d at 509).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, and section 3211(a)(7) requires liberal construction of the complaint and acceptance of alleged facts as true when testing whether a cognizable claim is stated.

Meyer v. Zucker · filed 2018-04-19(a)(1), (a)(7)

A motion under CPLR 3211 (a) (1) is properly granted "'only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively [*3]establishing a defense as a matter of law'" ( Trask v Tremper Prop. Assn., Inc. , 122 AD3d 1206, 1207 [2014], quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]). ... "On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a claim, we must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true, confer on the nonmoving party the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory" ( Graven v Children's Home R.T.F., Inc. , 152 AD3d 1152, 1153 [2017] [internal quotation marks and citations omitted]; see Porco v Lifetime Entertainment Servs., LLC , 147 AD3d 1253, 1254 [2017]; Torok v Moore's Flatwork & Founds., LLC , 106 AD3d 1421, 1421 [2013]).

Section 3211 requires courts deciding a motion to dismiss to accept the plaintiff's allegations as true and determine whether they fit a cognizable legal theory.

Divito v. Fiandach · filed 2018-04-27(a)(1), (7)

On a motion to dismiss, a court must accept the plaintiff's allegations as true and determine whether they fit into any cognizable legal theory ( see Lawrence v Graubard Miller , 11 NY3d 588, 595 [2008]; Matter of Machado v Tanoury , 142 AD3d 1322, 1323 [4th Dept 2016]).

On a motion to dismiss under CPLR 3211(a)(7), the plaintiff need not provide evidentiary facts supporting allegations of malice because the burden does not shift to the plaintiff.

Trump Vil. Section 4, Inc. v. Bezvoleva · filed 2018-05-09(a)(7)

Since "the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion'" ( Sokol v Leader, 74 AD3d 1180, 1182, quoting Kotowski v Hadley, 38 AD3d 499, 500). Here, to the extent that the defendants' statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by Oberman preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action ( see CPLR 3211[a][7]; Kamchi v Weisman, 125 AD3d 142, 158-159; Colantonio v Mercy Med. Ctr., 115 AD3d 902, 902-903; Sokol v Leader, 74 AD3d at 1182; Kotowski v Hadley, 38 AD3d at 500).

CPLR 3211(a)(7) requires the court to construe pleadings liberally, accept complaint allegations as true, draw favorable inferences for the plaintiff, and determine whether the alleged facts fit any cognizable legal theory.

Harris v. Reagan · filed 2018-05-10(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, we construe the pleadings liberally, accept the allegations in the complaint to be true, give [the] plaintiff[] the benefit of any favorable inferences and 'determine only whether the facts as alleged fit within any cognizable legal theory'" ( Maldonado v DiBre , 140 AD3d 1501, 1505 [2016], lv denied 28 NY3d 908 [2016], quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Cortlandt St. Recovery Corp. v Bonderman , 31 NY3d 30, 38 [2018]).

CPLR 3211 governs motions to dismiss, with pleadings liberally construed and favorable inferences accorded to the plaintiff.

People v. Credit Suisse Sec. · filed 2018-06-12(a)(5)

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . .

Section 3211(a) requires the court to accept the complaint's factual allegations as true, grant favorable inferences, and decide whether they fit a cognizable legal theory.

Kyowa Seni, Co., Ltd. v. ANA Aircraft Technics, Co., Ltd. · filed 2018-07-05(a)

On a motion to dismiss pursuant to CPLR § 3211 (a), the court is required to accept the facts alleged in the complaint as true and grant the plaintiff every favorable inference, deciding only "whether the facts as alleged fit within any cognizable legal theory." Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 (2001); See also Leon v. Martinez , 84 NY2d 83, 87-88 (1994).

Section 3211(a)(7) requires the court to accept pleaded facts as true, give plaintiffs every favorable inference, and decide whether those facts fit any cognizable legal theory.

Children's Magical Garden, Inc. v. Norfolk St. Dev., LLC · filed 2018-07-12(a)(7)

On a motion to dismiss pursuant to CPLR 3211, we afford the "pleading ... a liberal [*5]construction," accept the facts as alleged in the complaint as true, "accord plaintiffs the benefit of every possible favorable inference," and thus "determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

Section 3211(a) requires a defendant seeking dismissal for lack of standing to make a prima facie showing that the plaintiff lacks standing.

U.S. Bank Trust, N.A. v. Carter · filed 2018-08-01(a)

On such a motion, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied" ( Deutsche Bank Trust Co. Ams. v Vitellas , 131 AD3d 52, 59-60; see HSBC Bank USA, N.A. v Ehrenthal, 158 AD3d 668, 670; OneWest Bank, FSB v Berino, 158 AD3d 811; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650). Here, the defendant failed to make the requisite showing pursuant to either CPLR 3211(a) or CPLR 3212 to warrant dismissal based on a lack of standing ( see HSBC Bank USA, N.A. v Ehrenthal, 158 AD3d at 670; US Bank N.A. v Cohen, 156 AD3d 844, 846-847; DLJ Mtge. Capital, Inc. v Pittman, 150 AD3d 818, 820: Aurora Loan Servs., LLC v Mercius, 138 AD3d 650; Deutsche Bank Trust Co. Ams. v Vitellas , 131 AD3d at 59-60).

CPLR 3211 requires the court, on a motion to dismiss, to presume pleaded facts true, give them every favorable inference, and decide whether they fit a cognizable legal theory; allegations must be sufficiently particularized.

Monaghan v. Roman Catholic Diocese of Rockville Ctr. · filed 2018-10-03(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211, "the facts pleaded are presumed to be true, and the court must afford those allegations every favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Phillips v Trommel Constr ., 101 AD3d 1097, 1098; see Leon v Martinez , 84 NY2d 83, 87-88). "The allegations of the pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found" ( V. Groppa Pools, Inc. v Massello , 106 AD3d 722, 723 [citation omitted]; see Phillips v Trommel Constr ., 101 AD3d at 1098).

Section 3211(a)(7) governs motions to dismiss for failure to state a cause of action and permits consideration of documentary evidence, while an unresolved contract ambiguity cannot be resolved on that motion.

Unicorn Constr. Enters., Inc. v. City of New York · filed 2018-11-20(a)(7)

However, with respect to the claims as to the two aforementioned pedestrian bridges, we [*2]find that looking solely to the plain language used by the parties within the four corners of the contract, there is an ambiguity in the interpretation of the contract that cannot be resolved on a CPLR 3211 motion to dismiss ( see Telerep, LLC v U.S. Intl. Media LLC , 74 AD3d 401, 402 [1st Dept 2010]).

A prediscovery motion under CPLR 3211 is decided by accepting complaint allegations as true and giving plaintiff every possible favorable inference; whether claims later survive summary judgment or can ultimately be proved is irrelevant.

Brown v. First Student, Inc. · filed 2018-12-21(a)(7)

Accepting the factual allegations in the complaint as true and affording plaintiff every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), we conclude that the sixth, ninth, twelfth, thirteenth, and fourteenth causes of action adequately set forth a cognizable theory of negligence ( see generally Ernest v Red Cr. Cent. Sch. Dist. , 93 NY2d 664, 670-672 [1999], rearg denied 93 NY2d 1042 [1999]). ... "Whether [such causes of action] will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2d Dept 2006], citing EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19 [2005]).

On a motion under CPLR 3211(a)(7), the court must construe the pleading liberally, accept pleaded facts as true, give the plaintiff every favorable inference, and decide only whether the alleged facts fit a cognizable legal theory.

Baron v. Suissa · filed 2018-12-12(a)(7)

In deciding a motion to dismiss a complaint under CPLR 3211(a)(7), "the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Eisman v Village of E. Hills , 149 AD3d 806, 807; see Chanko v American Broadcasting Cos. Inc. , 27 NY3d 46, 52; Davis v Boeheim , 24 NY3d 262, 268).

Section 3211(a)(7) requires courts to construe pleadings liberally, accept alleged facts as true, draw favorable inferences for plaintiffs, and decide only whether the facts fit a cognizable legal theory.

D.K. Prop., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa. · filed 2019-01-17(a)(7)

It is well settled law that on a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is afforded a liberal construction, facts as alleged in the complaint are accepted as true, plaintiffs are afforded the benefit of every possible favorable inference, and the motion court must only determine whether the facts as alleged fit within any cognizable legal theory ( see e.g. Leon v Martinez , 84 NY2d 83, 87—88 [1994]).

When evidentiary material is considered on a CPLR 3211(a)(7) motion, dismissal depends on whether the plaintiff has a cause of action and whether disputed material facts prevent dismissal.

Cohen & Lombardo, P.C. v. Connors · filed 2019-02-01(a)(7)

"[W]here[, as here,] evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate"

On a CPLR 3211(a)(3) cross motion, the defendant must establish, prima facie, the plaintiff's lack of standing as a matter of law.

U.S. Bank N.A. v. Mezrahi · filed 2019-02-20(a)(3)

In opposition to the plaintiff's motion, the appellants failed to raise a triable issue of fact and, in support of their cross motion, failed to establish, prima facie, the plaintiff's lack of standing as a matter of law ( see US Bank N.A. v Coppola , 156 AD3d at 935; HSBC Bank USA, N.A. v Roumiantseva , 130 AD3d 983, 984).

Section 3211(a)(7) requires accepting pleaded facts as true and deciding whether they fit a cognizable legal theory, while section 3211(a)(1) requires documentary evidence to utterly refute the allegations and conclusively establish a defense.

Ravix v. Oligario · filed 2019-03-06(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88; see Sokol v Leader , 74 AD3d 1180, 1181). Although a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), the motion should not be granted unless it has been shown through this evidence "that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275; see Nilazra, Inc. v Karakus, Inc. , 136 AD3d 994, 995). To prevail on a motion to dismiss pursuant to CPLR 3211(a)(1), a defendant must demonstrate that the proffered documentary evidence " utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ( Old Republic Natl. Tit. Ins. Co. v Junction Abstract, Inc. , 150 AD3d 757, 758, quoting Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Greenberg v Spitzer , 155 AD3d 27, 44). ... Moreover, we agree with the Supreme Court that the evidence submitted by the defendant in support of her motion to dismiss did not qualify as documentary evidence within the meaning of CPLR 3211(a)(1) ( see Fontanetta v John Doe 1 , 73 AD3d 78, 84).

On a motion to dismiss, the opposing party must rebut supporting evidence with proof based on personal knowledge.

135 Evergreen Corp. v. Delvalle · filed 2019-05-24(a)(1) and (7)

Since landlord failed to rebut, on personal knowledge, any of the evidence submitted by tenants in support of their CPLR 3211 (a) (1) and (7) motion, landlord's other argument on appeal is similarly without merit.

CPLR 3211(a)(5) permits a party to move to dismiss a cause of action based on res judicata.

County Wide Flooring, Corp. v. Town of Huntington · filed 2019-06-05(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata ( see Williams v City of Yonkers , 160 AD3d 1017, 1018; Rudovic v Rudovic , 131 AD3d 1225, 1227).

Section 3211(a)(5) permits a defendant to move to dismiss a complaint on res judicata grounds before serving its answer.

Charles Deng Acupuncture, P.C. v. Allstate Ins. Co. · filed 2019-08-16(a)(5)

We note that defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer.

On a motion to dismiss for lack of standing, the defendant bears the initial burden of establishing the plaintiff’s lack of standing as a matter of law.

U.S. Bank N.A. v. Trulli · filed 2020-01-08(a)(3)

On a defendant's motion pursuant to CPLR 3211(a)(3) to dismiss the complaint based upon the plaintiff's alleged lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]; U.S. Bank N.A. v Clement , 163 AD3d 742, 743; Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 719).

On a motion to dismiss for failure to state a cause of action, evidentiary submissions do not warrant dismissal unless they conclusively establish that the plaintiff has no cause of action.

Lomeli v. Falkirk Mgt. Corp. · filed 2020-01-08(a)(7)

Here, viewing the evidence in the light most favorable to the plaintiff, the materials submitted by the defendants did not conclusively establish that the plaintiff has no cause of action against the Cortses to recover damages for unpaid wages pursuant to Labor Law § 196-d ( see Belling v City of Long Beach , 168 AD3d at 902).

On a CPLR 3211(a) motion, the court accepts the complaint’s allegations as true and gives the plaintiff every possible inference, but may dismiss a claim barred by the statute of frauds.

Botanical Realty Assoc. Urban Renewal, LLC v. Gluck · filed 2020-01-08(a)

Accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible inference, dismissal of the breach of contract cause of action should have been granted, since enforcement of the alleged oral agreement, ostensibly to modify the note and mortgage, is barred by the statute of frauds ( see General Obligations Law §§ 5-703[1]; 5-1103; Weiss v Halperin , 149 AD3d 1143, 1145; North Bright Capital, LLC v 705 Flatbush Realty, LLC , 66 AD3d 977, 978; Chemical Bank v Broadway 55-56th St. Assoc. , 220 AD2d 308, 309).

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

Clark Rigging & Rental Corp. v. Liberty Mut. Ins. Co. · filed 2020-01-31(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . We accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

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

Olney v. Town of Barrington · filed 2020-02-07(a)(7)

"[S]ummary dismissal is appropriate under CPLR 3211 (a) (7) when the defendant's evidentiary submissions establish conclusively that plaintiff has no cause of action' " (Liberty Affordable Hous., Inc. v Maple Ct. Apts., 125 AD3d 85, 87 [4th Dept 2015], quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]), and it is well established that truth constitutes a complete defense to a defamation claim ( see Ryan v New York Tel. Co. , 62 NY2d 494, 503 [1984]). Here, however, defendants' evidentiary submissions in support of their motion failed to conclusively "establish[] the truth of the specific libel [and slander] claimed by plaintiff " ( Russo v Padovano , 84 AD2d 925, 926 [4th Dept 1981] [emphasis added]; see Stega v New York Downtown Hosp. , 31 NY3d 661, 674 [2018]).

A CPLR 3211 motion to dismiss a holdover petition based on waiver fails when the tenant does not establish waiver as a matter of law.

Sebco Hous. Dev. Fund Co., Inc. v. Acosta · filed 2020-02-19

Tenant's CPLR 3211 motion to dismiss this nuisance holdover proceeding should have been denied. Tenant failed to establish as a matter of law that landlord intended to relinquish its right to maintain this proceeding ( see Sullivan v Brevard Assoc ., 66 NY2d 489, 495 [1985]), when it accepted two DSS rent checks.

On a motion to dismiss for failure to state a cause of action, courts construe the complaint liberally, accept its allegations as true, and give the plaintiff every favorable inference.

Kimso Apts., LLC v. Rivera · filed 2020-02-26(a)(7)

"When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . the benefit of every possible favorable inference'" ( AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. , 5 NY3d 582, 591, quoting Leon v Martinez , 84 NY2d 83, 87).

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, it asks whether the plaintiff has a cause of action and should not dismiss unless a claimed material fact is shown to be false.

Doe v. Ascend Charter Schs. · filed 2020-03-11(a)(7)

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, dismissal should not eventuate ( see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275).

Section 3211 requires courts deciding a motion to dismiss to construe the pleadings liberally, accept well-pleaded allegations as true, and consider whether they state a cognizable legal theory.

Hoffman v. AT & T Inc. · filed 2020-05-06

On a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, accept the well-pleaded allegations as true, and determine whether the allegations fit within any cognizable legal theory.

When a court considers evidence on a motion to dismiss under CPLR 3211(a)(7), it asks whether the plaintiff has a cause of action, rather than whether the complaint states one.

Roman Catholic Church of the Epiphany v. City of New York · filed 2020-05-13(a)(7)

Where, as here, the court considers evidentiary material in the context of a motion to dismiss pursuant to CPLR 3211(a)(7), the relevant criterion is whether the plaintiff has a cause of action, not whether it has stated one, and "unless it has been shown that a material fact as claimed [*2]by the [plaintiff] to be one is not a fact at all and unless it can be said to that no significant dispute exists regarding it, . . . dismissal should not eventuate" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275).

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

Williams v. Rodriguez · filed 2020-06-10(a)(7)

"In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Ackerman v New York Hosp. Med. Ctr. of Queens , 127 AD3d 794, 795; see Nonnon v City of New York , 9 NY3d 825, 827; Leon v Martinez , 84 NY2d 83, 87-88; Sokol v Leader , 74 AD3d 1180, 1181).

On a motion to dismiss under CPLR 3211(a)(5), the court accepts the complaint's allegations as true and does not dismiss a claim when the release and other proof do not conclusively refute them.

Koretnicki v. Northwoods Concrete, Inc. · filed 2020-06-18(a)(5)

Accepting the facts alleged in the third-party complaint as true upon this motion to dismiss, plaintiff's injuries resulted from either his own conduct or that of third-party defendants and, inasmuch as those allegations are not conclusively refuted by either the release or any other proof in the record, Jimerico failed to establish its entitlement to dismissal of the common-law indemnification claim ( see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63-64 [2012]; T. Lemme Mech., Inc. v Schalmont Cent. School Dist. , 52 AD3d 1006, 1008-1009 [2008]; see also Yacovacci v Shoprite Supermarket, Inc. , 24 AD3d 539, 541 [2005]).

On a motion to dismiss, factual allegations receive a presumption of truth, but legal conclusions do not.

Matter of Levy v. SUNY Stony Brook · filed 2020-07-08(a)(7)

Although the factual averments set forth in a petition must be taken as true in the context of a motion pursuant to CPLR 3211(a) and 7804(f), no such deference is given to "the legal conclusions drawn by the pleader nor [its] interpretation of the statutes [or contracts] involved" ( Matter of Albany, City of v McMorran , 16 AD2d 1021, 1022).

On a motion to dismiss under CPLR 3211(a)(5), the court accepts the complaint’s factual allegations as true and draws favorable inferences for the plaintiff.

Perez v. Baez · filed 2020-07-29(a)(5)

On a motion to dismiss pursuant to CPLR 3211(a)(5), the court is required to "accept the facts as alleged in the complaint as true" and resolve all inferences in favor of the plaintiff ( Faison v Lewis , 25 NY3d 220, 224 [internal quotation marks omitted]; see Cron v Hagro Fabrics , 91 NY2d 362, 366).

Section 3211(a)(3) requires a defendant seeking dismissal for lack of standing to establish the plaintiff's lack of standing as a matter of law.

Katz v. Hampton Hills Assoc. Gen. Partnership · filed 2020-08-19(a)(3)

Here, the defendants failed to meet their burden of establishing, prima facie, the Operating Corp.'s lack of standing as a matter of law ( see CPLR 3211[a][3]; Enhanced Acquisitions II, LLC v McSam Tribeca, LLC , 141 AD3d 506).

On a motion to dismiss under CPLR 3211, the court asks whether the alleged facts fit any cognizable legal theory.

Stephanie L. v. House of The Good Shepherd · filed 2020-08-20

"In the context of a motion to dismiss pursuant to CPLR 3211, [the court] determine[s] only whether the facts as alleged [in the complaint] fit within any cognizable legal theory ' " ( Davis v South Nassau Communities Hosp. , 26 NY3d 563, 572 [2015], quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994] [emphasis added]).

On a motion to dismiss under CPLR 3211(a)(7), evidentiary material can establish that a plaintiff has no cause of action.

Benitez v. Bolla Operating LI Corp. · filed 2020-12-09(a)(7)

Here, the evidentiary material submitted by the defendants conclusively established that the plaintiff had no cause of action.

On a motion to dismiss, the court views the record, including papers submitted on the motion, in the light most favorable to the plaintiff when assessing whether a claim is adequately pleaded.

Eagle Eye Collection Corp. v. Shariff · filed 2021-01-26

Viewing the record, as amplified by the papers submitted on the motion, in the light most favorable to plaintiff ( see 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 151-152 [2002]), plaintiff has failed to adequately plead a claim for fraudulent conveyance under Debtor and Creditor Law § 273-a.

On a CPLR 3211 motion to dismiss, the court accepts the plaintiff’s allegations as true, as amplified by affidavits and documentary evidence submitted on the motion.

VXI Lux Holdco, S.A.R.L. v. SIC Holdings, LLC · filed 2021-05-25

Accepting plaintiff's allegations as true, as amplified by the affidavits and documentary evidence submitted on the motion ( see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; Kaminsky v FSP Inc. , 5 AD3d 251, 251-252 [1st Dept 2004]), the SAC pleads, in great detail, that defendants, faced with a Chinese government audit, engaged in fraud to hide the fact that they had underpaid the social insurance tax applicable to their employees in Chengdu, China.

On a motion to dismiss as untimely under § 3211(a)(5), the respondent bears the initial burden of establishing that the proceeding was not timely commenced.

Matter of Munoz v. Annucci · filed 2021-06-17(a)(5)

Nonetheless, as respondent's refusal letter was dated September 26, 2018 — however that decision was communicated — and petitioner commenced this proceeding within four months, on January 25, 2019, when the petition/complaint was filed ( see CPLR 304 [a]), respondent has not satisfied his prima facie burden of establishing that the proceeding was not timely commenced ( see CPLR 217 [1]; 3211 [a] [5]; General Construction Law § 30; Matter of Park Beach Assisted Living, LLC v Zucker , 189 AD3d at 1758; Matter of Noel v New York City Hous. Auth.—Brownsville , 98 AD3d 981, 982 [2012]; cf. U.S. Bank N.A. v Derissaint , 193 AD3d 790, 791-792 [2021]).

Section 3211 applies a liberal standard on a motion to dismiss; uncertainty about whether a contract covers an unjust enrichment claim can make dismissal premature.

New York Mun. Power Agency v. Town of Massena · filed 2021-07-08

Given that we apply a liberal standard on a motion to dismiss (188 AD3d at 1518-1520), we agree with Supreme Court that it is premature to resolve the disputed issue.

A motion to dismiss under CPLR 3211(a)(3) for lack of standing must be denied when the plaintiff raises a question of fact about standing.

Golden Jubilee Realty, LLC v. Castro · filed 2021-07-28(a)(3)

In opposition, however, the plaintiffs raised a question of fact as to Golden Jubilee's standing, thus warranting denial of that branch of Pacht's motion which was pursuant to CPLR 3211(a)(3) to dismiss the amended complaint insofar as asserted against him based on Golden Jubilee's alleged lack of standing ( see Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 720).

On a motion to dismiss under CPLR 3211, the defendant must establish a prima facie basis for dismissal before the burden shifts to the plaintiff.

Concord Am. Autosales, Inc. v. Nussbaum · filed 2021-08-27

On a motion to dismiss a complaint, a defendant must demonstrate, prima facie, a basis for dismissal, whereupon the burden shifts to the plaintiff.

On a motion to dismiss for failure to state a cause of action, courts liberally construe the complaint, accept its alleged facts as true and give the plaintiff every favorable inference.

Cagino v. Levine · filed 2021-11-04(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), "we afford the complaint a liberal construction, accept the facts alleged as true, accord the plaintiff the benefit of every favorable inference and determine only whether the alleged facts fit within any cognizable legal theory" ( Gagnon v Village of Cooperstown, N.Y. , 189 AD3d 1724, 1725 [2020]; see McQuade v Aponte-Loss , 195 AD3d 1219, 1220 [2021]; Hilgreen v Pollard Excavating, Inc. , 193 AD3d 1134, 1136 [2021], appeal dismissed 37 NY3d 1002 [2021]).

On a motion to dismiss under CPLR 3211, courts construe the pleadings liberally, accept the complaint’s alleged facts as true, and give the plaintiff every possible favorable inference.

Sheppard v. United States Tennis Assn. Inc. · filed 2021-11-10(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211, the pleadings are afforded a liberal construction, the facts as alleged in the complaint are deemed true and the plaintiff is accorded the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; 106 N. Broadway, LLC v Lawrence , 189 AD3d 733, 736).

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

Louie's Seafood Rest., LLC v. Brown · filed 2021-11-10(a)

On a motion to dismiss a cause of action pursuant to CPLR 3211(a), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see CPLR 3026; Leon v Martinez , 84 NY2d 83, 87-88).

When evidence is considered on a Section 3211(a)(7) motion without converting it to summary judgment, dismissal requires showing that a material fact alleged by the plaintiff is not a fact and that no significant dispute exists about it.

Halvatzis v. Perrone · filed 2021-11-10(a)(7)

Where, as here, evidentiary material was submitted and considered on the motion to dismiss and the motion was not converted into one for summary judgment, "'the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate'" ( U.S. Bank N.A. v Herman , 174 AD3d 831, 832, quoting Rabos v R & R Bagels & Bakery, Inc. , 100 AD3d 849, 852; see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275).

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

Estate of M.D. v. State of New York · filed 2021-11-10

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction ( see CPLR 3026). The court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Sokoloff v Harriman Estates Dev. Corp. , 96 NY2d 409, 414; Leon v Martinez , 84 NY2d 83, 87-88; Rovello v Orofino Realty Co. , 40 NY2d 633, 634).

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

BL DOE 7 v. Fleming · filed 2021-11-19(a)(7)

To the extent that those allegations are "bare legal conclusions without factual support" ( Medical Care of W. N. Y. v Allstate Ins. Co. , 175 AD3d 878, 879 [4th Dept 2019]), the court was permitted to "consider affidavits submitted by . . . plaintiff to remedy any defects in the complaint" ( Leon v Martinez , 84 NY2d 83, 88 [1994]).

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

BL DOE 5 v. Fleming · filed 2021-11-19(a)(7)

Further, "[i]n assessing a motion under CPLR 3211 (a) (7), . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Leon , 84 NY2d at 88; see Burton v Sciano , 110 AD3d 1435, 1436 [4th Dept 2013]).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires showing that a claimed material fact is not a fact at all and that no significant dispute exists about it.

Halo v. Schmidt · filed 2021-11-24(a)(7)

Further, "where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Matter of Chet's Garage, Inc. v Village of Goshen , 161 AD3d 727, 731).

On a motion to dismiss under CPLR 3211(a)(7), an affidavit does not defeat a claim unless it conclusively shows that a material fact alleged by the plaintiff is false or that the plaintiff has no cause of action.

First Presbyt. Church of Monroe v. Vays · filed 2021-11-24(a)(7)

In support of the motion to dismiss, Sullivan averred in an affidavit that the Vayses' son was interred in the casket chosen by the Vayses. This averment did not show that "a material fact as claimed by the pleader to be one is not a fact at all" or otherwise conclusively demonstrate that the Vayses had no cause of action ( Francisco v Kiara Foods, Inc. , 197 AD3d 563, 564 [internal quotation marks omitted]; see Sokol v Leader , 74 AD3d 1180, 1181-1182).

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

Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP · filed 2021-12-08(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the pleading and submissions in opposition to the motion, accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory ( see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63-64).

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

Health v. Hyland · filed 2021-12-23(a)(7)

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

On a motion to dismiss under CPLR 3211(a)(7), the court draws all inferences in the plaintiffs' favor when deciding whether they have stated a claim.

Gateway Intl., 360, LLC v. Richmond Capital Group, LLC · filed 2022-01-04(a)(7)

Drawing all inferences in plaintiffs' favor ( see generally Chanko v American Broadcasting Cos. Inc. , 27 NY3d 46, 52 [2016]), plaintiffs have stated a claim for fraudulent inducement by alleging that Braun, on behalf of the defendant entities, misrepresented that he was "Jack Snyder" and not convicted felon Braun, that plaintiffs justifiably relied upon the misrepresentation to their detriment by doing business with defendants, because if plaintiffs had known Braun's true identity, they would not have borrowed money from defendants, and that plaintiffs were directly and proximately injured by this knowingly false representation ( see e.g. GoSmile, Inc. v Levine , 81 AD3d 77, 81 [1st Dept 2010], lv dismissed 17 NY3d 782 [2011]; P & HR Solutions , 195 AD3d at 474).

On a motion to dismiss for lack of standing, the moving defendant must establish the plaintiff’s lack of standing as a matter of law.

U.S. Bank N.A. v. Scully · filed 2022-03-02(a)(3)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( Capital One, N.A. v Ludden , 192 AD3d 752, 753 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Smith , 197 AD3d 532, 533; Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 719).

On a motion to dismiss, the court treats the complaint’s allegations as true, and defendants seeking dismissal under a forum selection clause must establish that the clause applies.

Massoumi v. Ganju · filed 2022-04-26(a)(1) and (7)

Treating the allegations in the complaint as true, as we must on a motion to dismiss, we find that defendants failed to meet their burden of establishing that the forum selection clause in the NDA applies to this action ( see DeSola Group v Coors Brewing Co., 199 AD2d 141 [1st Dept 1993]).

When the court considers evidence on a motion to dismiss without converting it to summary judgment, dismissal requires a showing that a claimed material fact is not a fact and that no significant dispute exists about it.

Altman v. DiPreta · filed 2022-04-27(a)(7)

Further, "where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Matter of Chet's Garage, Inc. v Village of Goshen , 161 AD3d 727, 731).

On a motion to dismiss for failure to comply with RPAPL 1304, the defendant must establish the plaintiff's noncompliance.

U.S. Bank N.A. v. DeSalvo · filed 2022-07-06(a)

In order to succeed on her motion to dismiss on the ground that the plaintiff failed to comply with RPAPL 1304, the defendant was required to establish that the plaintiff did not comply with RPAPL 1304.

On a motion under CPLR 3211, the court accepts the complaint’s allegations as true, draws favorable inferences for the plaintiff, and asks whether the alleged facts fit a cognizable legal theory.

Pasquale Condominium Bd. of Mgrs. v. 1094 Group, LLC · filed 2022-07-08

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

On a motion to dismiss for lack of standing, the defendant bears the initial burden of showing lack of standing; the plaintiff can defeat the motion by raising a question of fact.

Matter of Crown Castle NG E., LLC v. City of Rye · filed 2022-07-20(a)

Generally, in an action to recover damages, "[o]n a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing. To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" ( Golden Jubilee Realty, LLC v Castro , 196 AD3d 680, 682 [citations and internal quotation marks omitted]).

On a CPLR 3211 motion to dismiss, courts accept the complaint’s allegations as true and ask whether they fit any cognizable legal theory.

Western & Southern Life Ins. Co. v. U.S. Bank N.A. · filed 2022-08-09

Plaintiffs' allegations must be given liberal construction and the facts as alleged in the complaint accepted as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Our determination is limited to whether the facts as alleged in the complaint fit within any cognizable legal theory ( id. ).

When a defendant submits evidentiary material on a motion to dismiss for failure to state a cause of action, the test is whether the plaintiff has a cause of action, rather than whether the complaint states one.

Jean-Paul v. Rosenblatt · filed 2022-08-17(a)(7)

Where, as here, the defendants submitted evidentiary material in support of that branch of their cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, the criterion becomes whether the plaintiff has a cause of action, not whether one is stated ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275; Bua v Purcell & Ingrao, P.C. , 99 AD3d 843, 845).

On a motion to dismiss, a court may issue a declaration in the defendant's favor when unambiguous contract language resolves the merits.

Art Works, Inc. v. Al-Hadid · filed 2022-10-06

As the motion court was able to resolve the merits in favor of defendant due to the unambiguous contractual language of the parties' agreement, it was proper for the court to issue a declaration in defendant's favor ( Maurizzio v Lumbermens Mut. Cas. Co. , 73 NY2d 951, 954 [1989]).

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

Bank of N.Y. v. Karistina Enters., LLC · filed 2022-10-19(a)(7)

"Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Rabos v R & R Bagles & Bakery, Inc. , 100 AD3d 849, 851-852; see Guggenheimer v Ginzburg , 43 NY2d 268, 275; U.S. Bank N.A. v Herman , 174 AD3d 831, 832). Here, the evidentiary material submitted by the defendants in support of their motion to dismiss failed to utterly refute the factual allegations contained in the proposed amended complaint.

On a CPLR 3211 motion, the court must draw all inferences from the complaint in the plaintiff's favor.

100 & 130 Biscayne, LLC v. EE NWT OM, LLC · filed 2022-12-08

Drawing all inferences in plaintiff's favor, as we must on a CPLR 3211 motion, the complaint pleads that EE Operating Member failed to perform its own obligations, and failed to cause its affiliate, nonparty Talpiot Management LLC, to perform its obligations, for an improper purpose — namely , so that defendants or related parties in other real estate projects could acquire, at a low price, the property that was the subject of the building project.

On a motion to dismiss, pleaded facts receive every favorable inference, but bare legal conclusions and claims that are inherently incredible or flatly contradicted by documentary evidence do not.

Yovich v. Montefiore Nyack Hosp. · filed 2023-01-05(a)(7)

While on a motion to dismiss, the facts pleaded are presumed to be true and given every favorable inference, bare legal conclusions and factual claims that are either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration ( see Beattie v Brown & Wood , 243 AD2d 395 [1st Dept 1997]; Herman v Greenberg , 221 AD2d 251 [1st Dept 1995]).

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

Camelot Event Driven Fund v. Morgan Stanley & Co. LLC · filed 2023-02-06

On a motion to dismiss pursuant to CPLR 3211, the court must afford the pleading a liberal construction and accept the facts as alleged in the complaint as true, according the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss for failure to state a claim, favorable inferences from the complaint are not limitless; the court may draw the only reasonable inference supported by its allegations.

Pinnacle Capital, LLC v. O'Bleanis · filed 2023-03-22(a)(7)

While the plaintiff is accorded the "benefit of every possible favorable inference" on the defendants' motion to dismiss pursuant to CPLR 3211(a), "such favorable treatment is not limitless" ( O'Neill v Wilder , 204 AD3d 823, 823), and here, the only reasonable inference to be drawn from the plaintiff's allegations is that the plaintiff was acting on behalf of the proposed transferee, or as its successor-in-interest, when it paid the $280,000.

When a defendant submits evidentiary material on a motion to dismiss, the question is whether the plaintiff has a cause of action, rather than whether the complaint states one.

Williams v. Silverstone · filed 2023-04-12(a)(7)

Where, as here, the defendant submitted evidentiary material in support of his motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, the criterion becomes whether the plaintiff has a cause of action, not whether one is stated ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275; Jean-Paul v Rosenblatt , 208 AD3d 652, 653).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires material that conclusively establishes the plaintiff has no cause of action.

Tello v. Upadhyaya · filed 2023-04-12(a)(7)

When evidentiary material is considered on a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the motion should not be granted unless the evidentiary material "conclusively [establishes] that the plaintiff has no cause of action" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636; see Lawrence v Graubard Miller , 11 NY3d 588, 595; Guggenheimer v Ginzburg , 43 NY2d 268, 275).

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

Buchanan v. Law Offs. of Sheldon E. Green, P.C. · filed 2023-04-19(a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" [*2]( Mawere v Landau , 130 AD3d 986, 988 [internal quotation marks omitted]).

When a court considers evidentiary proof on a motion to dismiss without converting it to summary judgment, it determines whether the plaintiff has a cause of action, rather than merely whether the complaint states one.

Bono v. Stim & Warmuth, P.C. · filed 2023-04-26(a)(7)

Here, contrary to the plaintiffs' contention, after considering the evidentiary proof submitted by the defendants, the Supreme Court properly determined whether the plaintiffs had a cause of action against the defendants, and not whether the complaint stated one ( see Guggenheimer v Ginzburg , 43 NY2d at 275; Langley v Melville Fire Dist. , 213 AD3d at 750-751).

On a motion to dismiss based on a release, the defendant meets the initial burden by submitting a binding general release; the burden then shifts to the plaintiff to show grounds to void it.

Gilchrist v. Olver · filed 2023-04-28(a)(5)

Here, defendant met his initial burden on the motion by submitting the binding general release executed by plaintiff ( see Cain-Henry v Shot , 194 AD3d 1465, 1466 [4th Dept 2021]; Ford v Phillips , 121 AD3d 1232, 1233 [3d Dept 2014]). The burden thus shifted to plaintiff " 'to show that there has been fraud, duress or some other fact which will be sufficient to void the release' " ( Centro Empresarial Cempresa S.A. , 17 NY3d at 276).

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires showing that an asserted material fact is not a fact and that no significant dispute exists about it.

Krawczyk v. Incorporated Vil. of Lindenhurst · filed 2023-05-17(a)(7)

"Further, where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Halo v Schmidt , 199 AD3d at 992-993 [internal quotation marks omitted]; see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275).

CPLR 3211(a)(1) precludes dismissal when questions of fact remain about a contract’s meaning and intent.

Trump v. Trump · filed 2023-06-09(a)(1)

Further, if any question of fact exists concerning the meaning and intent of the contract in question, a dismissal pursuant to CPLR 3211 (a) (1) is precluded ( Khayyam v Doyle, 231 AD2d 475 [1st Dep't 1996]). Considering that the parties have yet to engage in discovery, and that there are questions regarding the reasonableness, meaning and intent behind the parties entering into the confidentiality agreement at issue, a dismissal, at this juncture, would be inappropriate.

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the defendant must first establish lack of standing as a matter of law; the plaintiff need only raise a question of fact.

Sizova v. Union Mut. Fire Ins. Co. · filed 2023-06-28(a)(3)

"Where a CPLR 3211(a)(3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( Wilmington Sav. Fund Socy., FSB v Matamoro , 200 AD3d 79, 89-90). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" ( id. at 90).

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

Behrens v. City of Buffalo · filed 2023-06-30(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" ( Leon v Martinez , 84 NY2d 83, 87 [1994]). We must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( id. at 87-88).

On a motion to dismiss under CPLR 3211(a), the court construes the complaint liberally and accepts its factual allegations as true.

Riggio v. County of Nassau · filed 2023-07-05(a)

Here, construing the complaint liberally and accepting the facts alleged therein as true ( see Board of Mgrs. v Brightwater Towers Condominium v Vitebsky , 207 AD3d 694), the plaintiff has alleged that a reasonable reader or listener would have understood the subject statements as referring to her ( see Udell v NYP Holdings, Inc. , 169 AD3d 954, 956) and that they were at least a [*2]mixed statement of opinion and were therefore actionable ( but see Bowen v Van Bramer 205 AD3d at 675-676; Kasavana v Vela , 172 AD3d at 1047).

On a motion to dismiss for lack of standing, the petition's allegations are accepted as true and construed in the petitioners' favor.

Matter of Lawyers for Children v. New York State Off. of Children & Family Servs. · filed 2023-07-06(a)(3)

Accepting the allegations in the petition as true and construing them in the light most favorable to petitioners ( see CPLR 3211 [a] [3]; Matter of Village of Woodbury v Seggos , 154 AD3d 1256, 1258 [3d Dept 2017]), petitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide ( see Police Benevolent Assn. of N.Y. State Troopers, Inc. v Division of N.Y. State Police , 29 AD3d 68, 69-70 [3d Dept 2006]).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, it determines whether the plaintiff has a cause of action, rather than merely whether the complaint states one.

Herman v. 818 Woodward, LLC · filed 2023-07-26(a)(7)

However, where, as here, a court considers evidentiary material submitted by the parties, and the motion is not converted into one for summary judgment, a court must then determine whether the proponent of the pleading has a cause of action, as opposed to whether one was stated ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275; B & A Realty Mgt., LLC v Gloria , 192 AD3d 851, 853).

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

North Shore Towers Apts. Incorp. v. Kozminsky · filed 2023-08-02(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88; see Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141).

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

City of Hialeah Employees' Retirement Sys. v. Teladoc Health, Inc. · filed 2023-08-23

On a motion to dismiss pursuant to CPLR 3211, the Court must afford the pleading a liberal construction and accept the facts as alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss under CPLR 3211(a)(7), the burden does not shift to the nonmoving party to rebut a defense raised by the movant.

State Farm Fire & Cas. Co. v. Capital Sewer, Inc. · filed 2023-10-04(a)(7)

"On a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party," and "'[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining [the] motion to dismiss'" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328-1329, quoting EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19).

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

Cella v. Suffolk County · filed 2023-10-25(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211, "[w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211 requires liberal construction of the pleading and favorable inferences when deciding whether the alleged facts fit a cognizable legal theory.

U.S. Bank N.A. v. EquiFirst Corp. · filed 2023-10-27(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211, "the pleading is to be afforded a liberal construction" and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez , 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss a petition under CPLR 3211(a)(7), the court treats its allegations as true and gives the petitioner every possible favorable inference.

Matter of Silverman v. Town of Ramapo · filed 2023-12-06(a)(7)

On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference ( see Matter of Le Golgotha Lodge, Inc. v Tax Commn. of the City of N.Y. , 196 AD3d 581, 582-583; Matter of Levy v SUNY Stony Brook , 185 AD3d 689, 690; Matter of Tyson v Town of Ramapo , 165 AD3d 805, 806).

On a CPLR 3211(a)(5) motion, the court treats the plaintiff’s allegations as true, draws reasonable inferences in the plaintiff’s favor, and reads an opposing affidavit in the same favorable light.

Huang v. Llerena-Salazar · filed 2023-12-27(a)(5)

"In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff's allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light" ( Sacchetti-Virga v Bonilla , 158 AD3d 783, 784 [internal quotation marks omitted]).

Under CPLR 3211(a)(7), evidentiary material warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Martinez v. NYC Health & Hosps. Corp. · filed 2024-01-17(a)(7)

Since the evidentiary material is received for "a limited purpose only, serving normally to remedy defects in the complaint," dismissal pursuant to CPLR 3211(a)(7) is warranted only where the evidentiary material "conclusively establish[es] that [the plaintiff] has no cause of action" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636; see Lawrence v Graubard Miller , 11 NY3d 588, 595; Guggenheimer v Ginzburg , 43 NY2d at 275).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires showing that a claimed material fact is not a fact and that no significant dispute exists about it.

Levy v. 103-25 68th Ave. Owners, Inc. · filed 2024-01-17(a)(7)

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it ( see Leon v Martinez , 84 NY2d at 88; Guggenheimer v Ginzburg , 43 NY2d 268, 275; Sokol v Leader , 74 AD3d 1180, 1181-1182).

When a court considers evidence on a motion under CPLR 3211(a)(7) without converting it to summary judgment, dismissal requires a showing that a claimed material fact is not a fact and that no significant dispute exists about it.

Knipper v. Drill Team of Lindenhurst Fire Dept., Inc. · filed 2024-01-17(a)(7)

"Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Sabharwal v Hyundai Mar. & Fire Ins. Co., Ltd. , 216 AD3d 1015, 1016 [internal quotation marks omitted]; see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, the question is whether the nonmoving party has a cause of action, rather than whether the pleading states one.

Burton v. Porcelain · filed 2024-01-24(a)(7)

However, where, as here, evidentiary material is considered on a motion pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, "the criterion is whether the [nonmoving party] has a cause of action, not whether he or she has stated one" ( Angeli v Barket , 211 AD3d 896, 898 [internal quotation marks omitted]; see Burke v Newburgh Enlarged City Sch. Dist. , 195 AD3d 674, 676).