N.Y. C.P.L.R. § 3211

CPLR 3211 does not permit dismissal of a third-party complaint that is sufficient on its face.

Rosner v. Paley · filed 1984-03-27

Consequently, since the third-party complaint herein was sufficient on its face, Special Term was not warranted in granting the motion to dismiss.

On a motion to dismiss under CPLR 3211(a)(7), the chief concern is whether the pleading states a cause of action, not the ultimate determination of the facts.

Duci v. Daily Gazette Co. · filed 1984-06-14(a)(7)

Although the chief concern on a motion under CPLR 3211 (subd [a], par 7) is whether the pleading itself states a cause of action rather than the ultimate determination of the facts (see Stukuls v State of New York, 42 NY2d 272; Rovello v Orofino Realty Co., 40 NY2d 633), we, nevertheless, conclude that the complaint herein is insufficient in law and, accordingly, reverse Special Term.

On a motion to dismiss for failure to state a cause of action, the court assumes every alleged fact is true and construes the complaint liberally in the plaintiff’s favor.

European American Bank & Trust Co. v. Strauhs & Kaye · filed 1984-06-28(a)(7)

Hit is too basic a proposition to require extensive citation that on a motion to dismiss a complaint, made pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action “every fact alleged must be assumed to be true and the complaint liberally construed in plaintiff’s favor” (Barr v Wackman, 36 NY2d 371, 375).

A fraud complaint that adequately alleges injury and the other elements of fraud withstands a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7).

Castle & Cooke, Inc. v. Lincoln Merchandise Corp. · filed 1984-07-09(a)(7)

Since the plaintiff has, as a pleading matter, clearly alleged such injury as would entitle it to compensation (cf. Kensington Pub. Corp. v Kable News Co., 100 AD2d 802), and since it has otherwise adequately alleged the remaining elements of a cause of action for fraud (see Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc., supra, p 467), Special Term did not err in denying the defendants’ motion to dismiss the complaint for failure to state a cause of action (cf. Mastro Ind. v CBS Records, 50 AD2d 783; Miller v Livingstone, 25 AD2d 106, affd 18 NY2d 967).

On a motion to dismiss for failure to state a cause of action, courts accept the complaint’s alleged facts as true and ask whether they fit any cognizable legal theory.

Klondike Gold, Inc. v. Associates · filed 1984-07-23(a)(7)

On a motion to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true and then determine whether those facts fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481; Rovello v Orofino Realty Co., 40 NY2d 633).

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

Central Park South Associates v. Hackel · filed 1984-08-29(a)(7)

Initially, we note that on a motion to dismiss a pleading for failure to state a cause of action, the allegations of the complaint must be deemed to be true and all inferences which reasonably flow from these allegations must be resolved in favor of the pleader (Sanders v Winship, 57 NY2d 391, 394).

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations are treated as true and construed liberally, with favorable inferences for the plaintiff.

Frank v. Shaw · filed 1984-09-05(a)(7)

On a motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss a complaint for failure to state a cause of action, all allegations contained in the complaint will be deemed true and plaintiff is entitled to a liberal construction of the complaint and to all favorable inferences which may be drawn from it.

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

H & R Hats & Novelties, Inc. v. Citibank, N. A. · filed 1984-06-19(a)(7)

H Special Term, in treating the motion of the defendant Graham & James, Esqs., as a motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss for failure to state a cause of action, correctly determined that the allegations of the complaint are deemed to be true for purposes of such motion.

On a motion under CPLR 3211(a)(7) addressed to the face of the pleading, the court asks whether the complaint states a cognizable claim for relief.

Anasae Realty Corp. v. Firestone · filed 1984-07-19(a)(7)

Plaintiff only sought preliminary injunctive relief and defendant’s motion to dismiss was addressed to the face of the pleading under CPLR 3211 (subd [a], par 7). Thus, at this juncture, our inquiry is limited to a determination whether the complaint states a cognizable claim for relief ... We conclude that it does.

A complaint survives a motion to dismiss when its factual allegations together state a legally cognizable cause of action.

Costa v. Breslow · filed 1984-08-31(a)(7)

This is particularly true in light of the liberal standard to be applied when testing the sufficiency of a complaint. “[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Under CPLR 3211(a)(1) and (7), a motion to dismiss should be denied when the factual allegations, taken together, state a legally cognizable cause of action.

Collision Plan Unlimited, Inc. v. Bankers Trust Co. · filed 1984-10-11(a)(1), (7)

Where factual allegations are discerned which, taken together, manifest a cause of action cognizable at law, a motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7) should be denied.

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

Meroni v. Holy Spirit Ass'n for the Unification of World Christianity · filed 1984-10-10(a)(7)

Upon a motion to dismiss a complaint for legal insufficiency, the court must assume that its allegations are true.

On a motion to dismiss for failure to state a cause of action, the complaint receives every possible favorable inference.

Eckert v. Columbus McKinnon Corp. · filed 1984-11-07(a)(7)

Special Term erred in granting the motion made by defendant against the complaint pursuant to CPLR 3211 (subd [a], par 7).

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action even if all its allegations are assumed true.

Louver v. New York City Transit Authority · filed 1984-12-24(a)(7)

Although we disagree with Special Term’s conclusions that the present action is barred by the doctrine of res judicata or collateral estoppel, we nevertheless affirm the order under review since we find that, assuming the truth of all of plaintiff’s allegations, its complaint fails to state a cause of action (CPLR 3211, subd [a], par 7).

CPLR 3211(a)(7) permits dismissal of a goods-sold-and-delivered claim when the plaintiff’s bill of particulars shows that the defendant did not order, receive, or use the goods.

Kroy Tanning Co. v. Brentwood Yarn Mills, Inc. · filed 1985-01-28(a)(7)

Special Term, therefore, erred in denying that portion of defendant’s motion which sought dismissal of the complaint for failure to state a cause of action under CPLR 3211 (subd [a], par 7).

On a motion to dismiss for failure to state a cause of action, a third-party complaint must be liberally construed.

Smith v. Guli · filed 1985-01-29(a)(7)

Accordingly, and in view of the fact that third-party complaints have to be liberally construed (Taft v Shaffer Trucking, supra, p 257; Braun v City of New York, 17 AD2d 264, 268), Special Term properly denied the motion to dismiss the third-party complaint for failure to state a cause of action.

On a motion to dismiss for failure to state a claim, the court views the pleadings in the light most favorable to the plaintiff.

Brook Shopping Centers, Inc. v. Bass · filed 1985-01-17(a)(7)

Viewing the pleadings in a light most favorable to plaintiffs (Rovello v Orofino Realty Co., 40 NY2d 633), the allegations of the complaint fall far short of demonstrating actual malice and that defendants acted with disinterested malevolence, intentionally seeking to inflict economic injury on plaintiffs by forcing them to engage legal counsel.

Under CPLR 3211(a)(7), allegations sufficient to state a cause of action withstand a motion to dismiss.

Cwick v. City of Rochester · filed 1985-01-29(a)(7)

The allegations here are comparable to those in the Pedersen complaint and are clearly sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7).

On a motion to dismiss for failure to state a cause of action, the court assesses whether the complaint sufficiently states a claim without deciding whether its allegations are true.

Carbillano v. Ross · filed 1985-02-11(a)(7)

Without expressing an opinion as to whether plaintiff will ultimately be able to establish the truth of the allegations pleaded, we find , that a cause of action was sufficiently stated.

On a motion to dismiss for failure to state a cause of action, pleadings are liberally construed, but a claim must allege a violated legal duty and resulting damages.

Goldberg v. Manhattan Ford Lincoln-Mercury, Inc. · filed 1985-03-28(a)(7)

Even though, as a general rule, pleadings are to be liberally construed and the material allegations and inferences to be drawn are to be taken as true ... a cause of action must allege the violation of a legal duty by the defendant and damages sustained by the plaintiff. Both aspects are lacking in this complaint.

On a motion to dismiss for failure to state a cause of action, the defendant bears the burden, and the court asks whether the pleading states any cause of action.

Connell v. Monastery · filed 1985-05-13(a)(7)

Conversely, on a motion to dismiss for failure to state a cause of action the burden is upon the defendant, since the court’s inquiry is limited to ascertaining whether the pleading states any cause of action.

On a motion to dismiss under CPLR 3211 (a) (7), the complaint is construed favorably to the plaintiff and its alleged facts are accepted as true.

Goodstein Construction Corp. v. City of New York · filed 1985-05-14(a)(7)

We agree with Special Term that, applying the standard applicable on a motion to dismiss, pursuant to CPLR 3211 (a) (7), the first and second causes of action do state cognizable claims for relief.

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the plaintiff may rely on the complaint without submitting supporting affidavits.

Spellman v. Columbia Manicure Manufacturing Co. · filed 1985-05-20(a)(7)

Where the motion to dismiss for failure to state a cause of action is made under CPLR 3211, the plaintiff may rest upon the matter asserted within the four corners of the complaint and need not make an evidentiary showing by submitting affidavits in support of his complaint” ... Applying these rules to the defendants’ motion, we conclude that the second cause of action alleging fraud, where the only fraud alleged pertained to the breach of a contract between the parties, failed to state a cause of action and should have been dismissed pursuant to CPLR 3211 (a) (7).

On a motion to dismiss under CPLR 3211(a)(7), the complaint is liberally construed and the plaintiff receives every possible favorable inference.

Smith v. Sipe · filed 1985-03-28(a)(7)

Moreover, on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), as here, the complaint is to be “liberally construed” (McKnight v Joyce, 79 AD2d 1066, 1067) and plaintiff is to be “given the benefit of every possible favorable inference” (Rovello v Orofino Realty Co., 40 NY2d 633, 634).

On a motion to dismiss for failure to state a cause of action, the court considers whether the complaint as a whole states any recognizable cause of action.

World Wide Adjustment Bureau v. Edward S. Gordon Co. · filed 1985-05-21(a)(7)

On a motion to dismiss, the inquiry is limited to whether the complaint, when considered as a whole, “states in some recognizable form any cause of action known to our law.”

On a motion to dismiss for failure to state a cause of action, the court gives the plaintiff every favorable inference and asks whether the complaint gives notice of the transactions and asserts the material elements of a claim.

Slutzky v. Cuomo · filed 1985-05-21(a)(7)

In determining such motions, the issue is “whether or not, on its face, the complaint [is] sufficient and plaintiffs must be given the benefit of every possible favorable inference” (Kahn v Friedlander, 90 AD2d 868, 869). The test is whether the pleading gives notice of the transactions relied upon by plaintiff, and whether sufficient material elements of the cause of action have been asserted (Jerry v Borden Co., 45 AD2d 344). The plaintiff’s complaint validly asserts a cause of action challenging whether the agreement of April 1,1984 violates NY Constitution, article XIV, § 1. As such, a motion pursuant to CPLR 3211 (a) (7) does not lie.

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

S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp. · filed 1985-05-23(a)(7)

On such a motion the facts alleged are deemed to be true.

A failure-to-state-a-cause-of-action defense raised in an answer may serve as a basis for summary judgment.

Brown v. Village of Albion · filed 1985-05-29(a)(7)

Here, defendants Plain, Doe, Dokes and Stokes have raised CPLR 3211 (a) (7) in their answers. (CPLR 3211 [e] [grounds properly raised in answer].) That ground is applicable to plaintiff’s cause of action based on Penal Law § 35.30.

A motion under CPLR 3211(a)(7) tests whether the complaint states a cognizable cause of action, rather than whether the claim has evidentiary support.

Glassman v. Catli · filed 1985-06-03(a)(7)

Special Term erred in treating the instant motion as one in the nature of a motion for summary judgment. The question here was not whether an issue of fact existed warranting trial, or even whether there is any evidentiary support for the complaint, but whether it can be determined, from within the four corners of the complaint, that plaintiffs have stated any cognizable cause of action (see, e.g., Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459,462; Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Holly v Pennysaver Corp., 98 AD2d 570, 571-572; Foley v D’Agostino, 21 AD2d 60, 65).

CPLR 3211(a)(7) permits a court to decide as a question of law whether a pleading states a cause of action for legal malpractice.

Rosner v. Paley · filed 1985-06-06(a)(7)

Contrary to the holding of the majority in the Appellate Division, whether the pleading was sufficient to state a cause of action for legal malpractice posed a question of law which could be determined on a motion to dismiss.

On a motion under CPLR 3211(a)(7), the court must construe the complaint liberally in the plaintiff’s favor and accept its allegations as true.

Carp v. Marcus · filed 1985-07-11(a)(7)

The scope of our review of a motion pursuant to CPLR 3211 (a) (7) is limited. We must construe the complaint liberally in plaintiff’s favor and accept the allegations as true.

On a motion under CPLR 3211(a)(7), the court accepts the plaintiff’s factual allegations as true without deciding whether the plaintiff can ultimately prove them.

Pope v. New York Property Insurance Underwriting Ass'n · filed 1985-08-12(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), all factual allegations advanced by a plaintiff are accepted as true withoqt passing upon the plaintiff’s ultimate ability to establish the truth of his averments before the trier of facts (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509).

On a motion to dismiss for failure to state a cause of action, the allegations are accepted as true and construed liberally; the motion must be denied if any cause of action can be discerned.

McManus v. Sturniolo · filed 1985-08-30(a)(7)

Turning to the argument that the complaint fails to state a cause of action, the allegations in the complaint, on such a motion, are deemed to be true and are construed liberally in the pleader’s favor, and if any cause of action may be discerned from such a pleading, the motion must be denied.

On a motion to dismiss under CPLR 3211(a)(7), a third-party complaint receives the same broad and liberal interpretation as any other complaint.

Power Test Petroleum Distributors, Inc. v. Northville Industries Corp. · filed 1985-10-15(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), a third-party complaint is entitled to the same broad and liberal interpretation accorded to any other complaint (De Pan v First Natl. Bank, 98 AD2d 885).

On a motion to dismiss under CPLR 3211(a)(7), the court treats the complaint’s factual allegations as true.

Greenview Trading Co. v. Hershman & Leicher, P. C. · filed 1985-05-28(a)(7)

The facts alleged in the complaint, which we treat as true on a motion to dismiss under CPLR 3211 (a) (7), arise out of plaintiff’s August 30, 1983 contract with defendant Indu Craft, Inc., to assign plaintiff’s lease of commercial premises and convey furniture and fixtures located at the premises to Indu Craft for $15,000, of which $500 had been paid as a down payment.

CPLR 3211 requires a court deciding a motion to dismiss to accept the complaint’s allegations as true, give the plaintiff every favorable inference, and determine whether the complaint states a cognizable cause of action.

O'Henry's Film Works, Inc. v. Nabisco, Inc. · filed 1985-08-08

A motion under that section assumes the truth of the allegations of the complaint, with plaintiff given the benefit of every favorable inference (see, Denihan Enters, v O’Dwyer, 302 NY 451, 458), and the complaint is legally sufficient if it states a cognizable cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268).

On a motion to dismiss a third-party complaint under CPLR 3211(a)(7), the court construes the allegations liberally and accepts them as true.

Continental Insurance v. J. Henry Schroder Bank & Trust Co. · filed 1985-09-11(a)(7)

On a motion addressed to the sufficiency of a third-party complaint, the court is constrained both to construe the allegations liberally and to accept those allegations as true.

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

Cowin v. Huntington Hospital · filed 1985-11-01(a)(7)

Upon a motion to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true and determine whether these facts fit within any cognizable legal theory (Klondike Gold v Richmond Assoc., 103 AD2d 821 [2d Dept 1984]).

Section 3211(a)(7) asks whether the complaint sufficiently pleads a cause of action, not whether the plaintiff’s evidence will ultimately support it.

McClary v. Civil Service Employees Ass'n · filed 1985-12-09(a)(7)

The court does not determine whether or not the plaintiffs evidence will support a cause of action. In a CPLR 3211 (a) (7) motion, the court’s concern is whether or not the complaint has sufficiently pleaded a cause of action.

A failure-to-state-a-cause-of-action issue based on an untimely notice of claim was not properly before the court when defendants had not moved under CPLR 3211(a)(7).

Kelly v. Solvay Union Free School District · filed 1986-01-24(a)(7)

Defendants have not moved to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) nor have plaintiffs applied for leave to serve a late notice of claim. Thus, it appears that this issue has not been properly raised for our consideration.

On a CPLR 3211(a)(7) motion, the court accepts the complaint’s allegations and determines whether the pleading is legally sufficient.

Furia v. Furia · filed 1986-01-27(a)(7)

In the procedural posture in which this case comes before this court, we accept, as we must, each and every allegation of the plaintiffs’ complaint (219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509) and find that it is legally sufficient.

On a motion to dismiss for failure to state a cause of action, the court assumes the alleged facts are true and liberally construes the complaint in the plaintiff’s favor.

Metropolitan Transportation Authority v. Triumph Advertising Productions, Inc. · filed 1986-01-28(a)(7)

Assuming every fact alleged to be true and liberally construing the amended complaint in plaintiff’s favor, as we must on a motion to dismiss for insufficiency, the amended complaint fails to state any cognizable cause of action against the individual defendant.

On a motion to dismiss under CPLR 3211(a)(7), the complaint is construed liberally in the plaintiff’s favor and sustained if it can be read to state a cause of action.

Hartford Accident & Indemnity Co. v. Peat, Marwick, Mitchell & Co. · filed 1985-10-16(a)(7)

At this stage of a lawsuit, the complaint must be liberally construed in favor of the plaintiff, and if the complaint can be construed to state a cause of action, it should be sustained.

Section 3211(a)(7) permits dismissal when a complaint relies on a conclusory claim of standing without factual allegations showing the plaintiff’s interest or rights.

Sterritt v. Heins Equipment Co. · filed 1985-10-17(a)(7)

Plaintiff offered no factual allegations to support this conclusory statement. There is nothing in the record indicating that plaintiff had any interest in the farm equipment or any rights under the retail installment contract. Special Term therefore properly granted the motions to dismiss the complaint.

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

McBride v. Brookdale Hospital Medical Center · filed 1986-01-03(a)(7)

On a motion such as the one before the court, plaintiffs’ allegations must be assumed to be true.

When evidence is considered with the pleadings on a motion to dismiss for failure to state a cause of action, the question is whether the claimant actually has a cause of action, even if it was not specifically pleaded.

Smith v. Anchorage Associates · filed 1986-02-25(a)(7)

Although where evidentiary material is considered with the pleadings on a motion to dismiss for failure to state a cause of action, the criteria is not whether the proponent of the pleading has stated a cause of action but whether he actually possesses a cause of action even if not specifically pleaded (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]), no cause of action against said defendant can be discerned here.

A complaint survives a motion under CPLR 3211(a)(7) if it states a cause of action when the plaintiff receives every favorable inference.

Green v. Leibowitz · filed 1986-03-24(a)(7)

It is fundamental that a complaint will not be dismissed on motion pursuant to CPLR 3211 (a) (7) so long as, giving the plaintiff the benefit of every possible favorable inference, a cause of action is stated (see, e.g., Holly v Pennysaver Corp., 98 AD2d 570, 571-572).

Section 3211(a)(7) requires the court to assume the factual allegations are true and determine whether they provide a basis for legal relief.

Qualben v. Aiello · filed 1986-05-12(a)(7)

When a motion to dismiss a complaint for failure to state a cause of action is made, it must be determined whether, assuming the accuracy of the allegations of fact in the papers, there is some basis to award legal redress, assuming the truth of the plaintiffs’ allegations, their pleadings state a wrong for ...which there is a remedy.

On a motion to dismiss for failure to state a cause of action, the pleadings must be viewed liberally and their allegations assumed true.

Confino v. Confino · filed 1986-05-19(a)(7)

The defendant moved under CPLR 3211 rather than for summary judgment pursuant to CPLR 3212. The pleadings, which are quite specific, must be viewed liberally and upon an assumption of their truth (see, CPLR 3026).

On a motion to dismiss under subsection (a)(7), whether the plaintiff can prove alleged damages is not resolved from the pleadings.

Armory Building Ltd. Partnership v. Park 25th Associates · filed 1986-05-22(a)(7)

The existence of such damage is a matter of proof, inappropriate for resolution on a motion to dismiss under CPLR 3211 (a) (7).

A complaint survives a motion to dismiss for failure to state a cause of action if it states a cause of action when the plaintiff receives every possible favorable inference.

Mansour v. Abrams · filed 1986-05-23(a)(7)

Special Term erred with respect to five of the causes of action. "[A] complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists” (Rovello v Orofino Realty Co., 40 NY2d 633, 634).

Section 3211(a)(7) limits a motion to dismiss to whether the pleading states a cognizable claim; disputed questions about an agreement’s meaning must await trial.

Goldman v. Goldman · filed 1986-03-20(a)(7)

However, this was not the function of the court on a motion to dismiss pursuant to CPLR 3211 (a) (7). On such a motion, the sole function is to determine, from the four corners of the pleading, whether a cognizable claim for relief exists (Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Foley v D’Agostino, 21 AD2d 60, 64-65).

When a motion under subsection (a)(7) has not been converted to summary judgment, dismissal is warranted only if it is conclusively established that the plaintiff has no cause of action.

Town of North Hempstead v. Sea Crest Construction Corp. · filed 1986-04-21(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) which has not been converted into a motion for summary judgment, the question to be determined is whether the plaintiff actually has a cause of action, and a dismissal will be warranted only in those situations in which it is conclusively established that there is no cause of action (see, Fields v Leeponis, 95 AD2d 822).

On a CPLR 3211 (a) (7) motion, considerations bearing on the merits do not defeat a cause of action sufficiently pleaded on the face of the complaint.

Goodstein Construction Corp. v. City of New York · filed 1986-05-08(a)(7)

The motion is based solely on CPLR 3211 (a) (7), failure to state a cause of action. ... We agree with the Appellate Division majority that the causes of action are sufficiently pleaded. ... These considerations might well be pertinent to a motion addressing the merits but are not dispositive on a motion addressed to the face of the pleadings.

Under CPLR 3211(a)(7), affidavits may preserve an inartfully pleaded meritorious claim; without them, the court assesses the complaint’s allegations.

Southmark/Envicon Capital Corp. v. United Airlines, Inc. · filed 1986-05-30(a)(7)

Defendants move, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action. ... While affidavits may be used to preserve inartful pleading to demonstrate meritorious claims, plaintiff has not submitted any.

Under CPLR 3211(a)(7), a count that only alleges damages from claims already pleaded may be dismissed for failing to state a separate cause of action.

Rosini v. Cunanan · filed 1986-06-18(a)(7)

This dismissal is not on the grounds submitted by the defendants, but on the basis of form only in that the allegations do not state a separate cause of action, distinct from actions one and two.

Section 3211(a)(7) permits dismissal when evidentiary material shows that a material fact alleged in the complaint is not a fact.

Prudential-Bache Metal Co. v. Binder · filed 1986-07-17(a)(7)

When evidentiary material submitted in support of a complaint demonstrates that a material fact claimed by the plaintiff is not a fact at all, there is no bar to a dismissal of the complaint for failure to state a cause of action.

Section 3211(a)(7) requires dismissal of pleadings so devoid of factual substance that they fail to give notice of the conduct underlying a claim.

Travelers Insurance v. Ferco, Inc. · filed 1986-08-21(a)(7)

Pleadings which are so devoid of factual substance require dismissal pursuant to CPLR 3211 (a) (7).

On a motion to dismiss for failure to state a cause of action, the court assumes the pleaded facts are true and asks whether they state grounds for relief, regardless of whether the petitioner will ultimately succeed.

Montaneli v. New York State Commission on Judicial Conduct · filed 1986-10-07(a)(7)

In resolving this portion of the cross motion, the issue is not whether petitioner may be ultimately successful on the merits. Rather, assuming all of the facts as pleaded to be true, the test is whether they have stated grounds for relief.

A CPLR 3211(a)(7) motion to dismiss does not permit the court to rule on the merits of the claim.

Wahl v. Wahl · filed 1986-07-11(a)(7)

On plaintiffs motion to dismiss defendant’s counterclaim pursuant to CPLR 3211 (a) (7), the court erred in ruling on the merits.

On a motion to dismiss for failure to state a cause of action, the court gives the complaint’s allegations and any additional material submitted by the plaintiff their most favorable intendment.

Frank v. National Broadcasting Co. · filed 1986-09-29(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7) the court must give the allegations of the complaint, as supplemented by any additional material submitted by the plaintiff, "their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442, mot for reh denied 57 NY2d 669, cert denied 459 US 1146).

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the court must deem all allegations of the complaint true.

Green v. Rozenholc · filed 1986-10-23(a)(7)

It is axiomatic that all of the allegations of the complaint must be deemed true for purposes of a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7).

On a motion to dismiss under CPLR 3211(a)(7) that has not been converted to summary judgment, the court gives the complaint and the plaintiff’s supplemental submissions their most favorable intendment.

CPC International Inc. v. McKesson Corp. · filed 1986-11-13(a)(7)

In the instant case motions to dismiss have been made, pursuant to CPLR 3211 (a) (7), as mentioned supra, and our examination of the record indicates that these motions have not, pursuant to CPLR 3211 (c), been converted by notice to ones for summary judgment. Therefore, "[the] complaint, supplemented by * * * plaintiff’s additional submissions * * * must be given their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442 [1982], cert denied 459 US 1146 [1983]), when measuring the sufficiency of causes of action contained in a complaint against a motion to dismiss.

A failure-to-state-a-cause-of-action defense under CPLR 3211(a)(7) may be preserved in an answer without a motion to dismiss.

Safier v. Kassler · filed 1986-11-26(a)(7)

Although plaintiff did not move to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), she did preserve the issue by including it as a defense in her answer.

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

Goldsmith v. Sternberg · filed 1986-12-08(a)(7)

Moreover, upon a motion to dismiss a pleading for legal insufficiency, "the court must assume that its allegations are true * * * and must deem the complaint to allege whatever can be imputed from its statements by fair and reasonable intendment, however imperfectly, informally or illogically facts may be stated therein” (Pace v Perk, 81 AD2d 444, 449).

On a CPLR 3211(a)(7) motion, a complaint is sufficient if any reasonable view of its alleged facts permits recovery.

Great Atlantic Insurance v. Weinstein · filed 1986-12-09(a)(7)

The Court of Appeals, in 219 Broadway Corp. v Alexander’s, Inc. (46 NY2d 506, 509 [1979]), set forth the test by which to determine a complaint’s sufficiency when it stated, in pertinent part: "The sole question presented for * * * review is whether the plaintiff’s complaint states a cause of action. As such, we accept, as we must, each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff’s ability ultimately to establish the truth of these averments before the trier of the facts * * * If we find that the plaintiff is entitled to a recovery upon any reasonable view of the stated facts, our judicial inquiry is complete and we must declare the plaintiff’s complaint to be legally sufficient”. Applying the legal authority of 219 Broadway Corp. v Alexander’s, Inc. (supra) to the facts of the instant case, we find that plaintiff’s complaint is legally sufficient in that it states causes of action against defendants.

On a motion to dismiss for failure to state a cause of action, the court must accept the complaint’s allegations as true and draw all inferences in the plaintiff’s favor.

Grand Realty Co. v. City of White Plains · filed 1986-12-31(a)(7)

It is axiomatic that on a motion to dismiss the complaint for failure to state a cause of action, the court is required to view every allegation of the complaint as true and resolve all inferences in favor of the plaintiff regardless of whether the plaintiff will ultimately prevail on the merits (see, Sanders v Winship, 57 NY2d 391, 394; Datlof v Turetsky, 111 AD2d 364).

A complaint alleging an employee’s unique skill and solicitation of customers after breaching a covenant not to compete states a cause of action.

Michelson's Beauty Enterprises, Inc. v. Merendino · filed 1987-01-05(a)(7)

The defendant moves for an order dismissing the complaint, pursuant to CPLR 3211 (a) (7) on the grounds that the complaint fails to state a cause of action. ... Viewed within this framework, the complaint and supporting affidavit, which allege that the defendant has a unique skill, and that, after breaching the covenant not to compete, ... she solicited customers from the plaintiff, states a cause of action.

A motion to dismiss under CPLR 3211 (a) (7) must fail if the complaint’s factual allegations, taken together, state any cause of action.

Kushner v. King · filed 1987-01-20(a)(7)

However, in considering a motion pursuant to CPLR 3211 (a) (7), the sole criterion is whether the pleading states a cause of action, and therefore if from its four corners factual allegations are discerned which if taken together can manifest any cause of action, a motion for dismissal must fail.

Under CPLR 3211(a)(1) and (7), dismissal is improper when the defendant’s evidence does not conclusively controvert allegations that must be liberally construed and given every favorable inference.

Godnig v. Belmont Realty Co. · filed 1986-11-17(a)(1), (a)(7)

We agree with Special Term’s conclusion that the defendants failed to present evidence sufficient to conclusively controvert the plaintiff’s allegations which, in the posture of this case, must be liberally construed and are entitled to every favorable inference. Accordingly, Special Term properly denied the defendants’ cross motion to dismiss (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Lavigne v Allen, 36 AD2d 981).

Under CPLR 3211(a)(7), a potential defense that the plaintiff’s reliance was unjustified does not make an otherwise sufficient fraud complaint insufficient.

Delane Check Cashing Corp. v. Katz · filed 1987-02-17(a)(7)

The complaint states a legally sufficient cause of action to recover damages for fraud and, therefore, the defendant’s motion to dismiss (see, CPLR 3211 [a] [7]) was properly denied. The defendant’s assertion that the plaintiff’s reliance was unjustified might, if proven, constitute a defense, but it does not impair the sufficiency of the complaint.

A CPLR 3211(a)(7) objection fails when the pleading states a valid cause of action.

McDermott v. Coughlin · filed 1987-03-20(a)(7)

Respondents’ first affirmative defense in the nature of an objection in point of law (CPLR 3211 [a] [7]) has no merit. ... Thus, it is clear beyond cavil that petitioner states a valid cause of action.

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the court assumes the plaintiff’s allegations are true.

Empire of America, Federal Savings Bank v. Arthur Andersen & Co. · filed 1987-04-03(a)(7)

On a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]) we must assume plaintiff’s allegations are true (see Becker v Schwartz, 46 NY2d 401, 408; Cohn v Lionel Corp., 21 NY2d 559, 562).

A breach of contract complaint withstands a CPLR 3211(a)(7) motion when it sets forth the contract and properly alleges a breach.

Stabulas v. Brooks Piece Dye Works Corp. · filed 1985-06-10(a)(7)

An examination of the complaint indicates that it is sufficient to withstand a motion to dismiss. ... Plaintiff has set forth the contract as part of his complaint and properly pleaded a breach thereof.

Under CPLR 3211(a)(7), a complaint survives a motion to dismiss for failure to state a cause of action when its allegations are sufficient on their face to establish a prima facie claim.

Rokeach v. Zaltz · filed 1985-07-08(a)(7)

Likewise, we are unpersuaded by appellant’s contention that a dismissal is warranted under CPLR 3211 (a) (7) because the complaint fails to state a cause of action. Plaintiff has alleged adequate facts to give rise to an issue concerning the ownership of the property and the complaint on its face is sufficient to establish a prima facie case for partition and an accounting.

On a motion to dismiss for failure to state a cause of action, pleadings must be liberally construed, and dismissal is proper only if no possible cause of action exists.

Mount Sinai Hospital v. Burns · filed 1986-10-22(a)(7)

It also argues that the pleadings must be liberally construed, and that this motion to dismiss should not be granted unless no possible cause of action exists. Plaintiff correctly recites the standard to be applied in a motion to dismiss for failure to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the complaint is construed liberally in the plaintiff’s favor, its factual allegations are accepted as true, and supporting sworn allegations may be considered.

Comsewogue Union Free School District v. Rovegna · filed 1987-06-08(a)(7)

Thus, the defendant’s cross motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]) was properly denied. Construing the amended complaint liberally in the light most favorable to the plaintiff, and accepting as true the factual allegations contained therein ... and considering the sworn allegations of the School Board president ... the amended complaint states a cause of action to recover damages for breach of contract.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true, gives the pleading a favorable reading, and asks whether it states a legally cognizable claim.

Swogger v. Waterman Steamship Corp. · filed 1987-07-08(a)(7)

However, for purposes of this proceeding, the allegations in the complaint must be deemed to be true. Moreover, the pleading is entitled to every favorable reference that may be drawn from it (see, Westhill Exports v Pope, 12 NY2d 491 [1963]). All that is required is that the complaint manifest a cause of action cognizable under law (see, Siegel, NY Prac § 265, at 325), and for the reasons heretofore discussed, this court finds that it does.

On a motion under CPLR 3211(a)(7) that has not been converted to summary judgment, evidence submitted to remedy pleading defects must conclusively establish that the plaintiff has no cause of action.

SRW Associates v. Bellport Beach Property Owners · filed 1987-07-13(a)(7)

For a defendant to be successful on a motion to dismiss pursuant to CPLR 3211 (a) (7) which has not been converted to a summary judgment motion, the evidence submitted by the parties and received for the limited purpose of remedying defects in the complaint (see, Rovello v Orofino Realty Co., 40 NY2d 633; Macey v New York State Elec. & Gas Corp., 80 AD2d 669) must "establish conclusively that [the] plaintiff has no cause of action” (Rovello v Orofino Realty Co., supra, at 636).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the negligence allegations and sustains the complaint if any reasonable view of the facts supports recovery.

Carpenter v. Miller · filed 1987-07-23(a)(7)

On a CPLR 3211 (a) (7) motion to dismiss, it is well recognized that we accept the allegations of negligence without expressing our opinion as to plaintiffs ability to ultimately establish the truth of the contentions before a jury (see, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509). If we find any reasonable view of facts to support plaintiffs recovery, our inquiry is complete and the complaint must be sustained (see, supra; see also, MacDonald v Howard, 91 AD2d 1119, 1120).

On a motion to dismiss under CPLR 3211, the court determines whether the pleaded facts fit a cognizable legal theory.

Doe v. Doe · filed 1987-08-14

The court must then determine whether the set forth facts fit within a cognizable legal theory.

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

Becker v. City of New York · filed 1987-06-01(a)(7)

It is well settled that where a motion to dismiss is made under ...CPLR 3211 (a) (7), affidavits may be received for the limited purpose of remedying defects in the complaint (Rovello v Orofino Realty Co., 40 NY2d 633).

On a CPLR 3211 motion to dismiss a counterclaim, the court assumes the facts alleged by the counterclaimant are true.

Miller v. Geloda/Briarwood Corp. · filed 1987-07-02

Assuming as we must that the facts asserted by defendant are true (Morone v Morone, 50 NY2d 481 [1980]), plaintiff’s actions were not motivated solely by malice and the desire to harm defendant.

On a motion to dismiss under CPLR 3211(a)(7), the complaint and any additional submissions receive their most favorable intendment.

CPC International Inc. v. McKesson · filed 1987-09-15(a)(7)

Applying the rule that on a motion to dismiss (CPLR 3211 [a] [7]), "the allegations of a complaint, supplemented by a plaintiffs additional submissions, if any, must be given their most favorable intendment” ... we conclude that a valid cause of action for common-law fraud is stated.

On a motion to dismiss for failure to state a cause of action, the court examines whether the pleading shows a cause of action, even if it is not properly stated.

New York State Society of Obstetricians & Gynecologists, Inc. v. Corcoran · filed 1987-10-01(a)(7)

On a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]; 7804 [f]), the court looks to the substance of the pleading to determine whether the pleader has a cause of action, not whether it has properly stated one (Rovello v Orofino Realty Co., 40 NY2d 633).

On a motion under CPLR 3211(a)(7), alleged facts are assumed true and the complaint is construed liberally in the plaintiff’s favor.

Jacobs v. Haber · filed 1987-10-19(a)(7)

When a motion is made under CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, every fact alleged must be assumed to be true and the complaint must be liberally construed in the plaintiff’s favor (see, Barr v Wackman, 36 NY2d 371, 375).

On a motion to dismiss for failure to state a cause of action, the court asks whether the challenged pleading states any cause of action against the movant.

Costanza Construction Corp. v. City of Rochester · filed 1987-12-18(a)(7)

Upon a dismissal motion, as distinguished from a summary judgment motion, the court’s inquiry is limited to a determination as to whether the pleading challenged states any cause of action against the movant (see, Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 17-18, affd 67 NY2d 778; Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Under CPLR 3211(a)(7), a general allegation of a driver’s incompetence can survive a motion to dismiss even without supporting proof.

Deitz v. Aronin · filed 1987-12-23(a)(7)

While such an allegation, without some supporting proof, would be insufficient to survive a motion for summary judgment, dismissal under CPLR 3211 (a) (7) is inappropriate (see, Guggenheimer v Ginzburg, 43 NY2d 268, 274-275).

On a motion to dismiss under CPLR 3211(a)(7), allegations taken as true that establish a bona fide justiciable controversy are sufficient to withstand dismissal.

Sysco Corp. v. Town of Hempstead · filed 1987-10-19(a)(7)

The allegations of the complaint alleging violations of statute and the Federal and State Constitutions, when considered as true, demonstrate the existence of a bona fide justiciable controversy which should be settled. Thus, the plaintiffs have made a sufficient showing to withstand the defendants’ motion to dismiss the complaint (see, CPLR 3211 [a] [7]; Guggenheimer v Ginzburg, 43 NY2d 268, 275; Metropolitan Package Store Assn. v Koch, 89 AD2d 317, 322, mot to dismiss appeals granted 58 NY2d 1112, appeal dismissed 464 US 802, reh denied 464 US 1003).

On a motion to dismiss under CPLR 3211(a)(7), the complaint’s allegations must be accepted as true.

Martrano v. Entin · filed 1987-10-26(a)(7)

According to the allegations of the complaint, which must be accepted as true for the purpose of the motion to dismiss (see, Becker v Schwartz, 46 NY2d 401, 408), the plaintiff Marie Martrano consulted the defendant, a physician specializing in the field of neurology, after experiencing certain symptoms of possible neurological illness.

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

Property Clerk, New York City Police Department v. Scricca · filed 1987-12-29(a)(7)

Taking the allegations of the complaint as true, which, of course, the court must when, as here, dismissal is sought under CPLR 3211 (a) (7) ... the Property Clerk’s complaint clearly states a cause of action against the defendant owner of the vehicle, particularly when it is observed that section 14-140 (b) of the Administrative Code ... authorizes the Property Clerk to take into custody all property used in violation of the law.

On a motion to dismiss for failure to state a cause of action, the court accepts the claimant’s allegations and finds the claim legally sufficient if any reasonable view of the stated facts permits recovery.

Schneider National, Inc. v. State · filed 1988-01-07(a)(7)

As the question presented is whether claimant’s claim states a cause of action, we must accept each and every allegation forwarded by the claimant without expressing any opinion as to the claimant’s ultimate ability to establish the truth of these averments before the trier of facts (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Becker v Schwartz, 46 NY2d 401). If we find that claimant is entitled to a recovery upon any reasonable view of the stated facts, our judicial inquiry is complete and we must declare the claim to be legally sufficient (219 Broadway Corp. v Alexander’s, Inc., supra; Dulberg v Mock, 1 NY2d 54).

On a motion to dismiss for failure to state a cause of action, the court asks whether the pleaded facts show any legally cognizable claim.

Jiggets v. Grinker · filed 1988-01-12(a)(7)

On a motion to dismiss, the court must consider whether plaintiffs’ factual allegations manifest any cause of action cognizable at law.

On a motion to dismiss for failure to state a cause of action, the pleadings are construed liberally in the plaintiff’s favor, and the plaintiff need not yet prove the claim.

Carpenter v. Briggs · filed 1988-01-14(a)(7)

Given that on a CPLR 3211 (a) (7) motion the pleadings are to be ...liberally construed in favor of the complainant ... Supreme Court rightly concluded that a legally sufficient cause of action was stated ... whether this claim is ultimately provable need not be demonstrated at this juncture.

On a motion to dismiss for failure to state a cause of action, the court assumes the alleged facts are true and construes the complaint in the plaintiff’s favor.

Waste Distillation Technology, Inc. v. Blasland & Bouck Engineers, P. C. · filed 1988-01-19(a)(7)

When a motion is made under CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, every fact alleged must be assumed to be true and the complaint must be liberally construed in the plaintiff’s favor ... In the instant action, viewing the complaint in a light most favorable to the plaintiff, we hold that the plaintiff has failed to sufficiently allege that any losses incurred were causally related to the defendants’ letter.

Under CPLR 3211(a)(7), a complaint must be dismissed if, even when liberally construed, it omits an essential element of the cause of action; the plaintiff may be granted leave to replead.

Buchwalter v. Dayton Management Corp. · filed 1988-03-17(a)(7)

Even with liberal interpretation, however, not having pleaded all the essential elements . of the cause of action requires that the complaint be dismissed. The plaintiff, however, is granted leave to properly replead the cause of action.

Section 3211(a)(7) permits dismissal of a counterclaim when its alleged facts do not satisfy the elements of a cause of action.

Brown v. Bethlehem Terrace Associates · filed 1988-03-24(a)(7)

After serving a reply, plaintiff moved to dismiss the counterclaims for failure to state a cause of action (CPLR 3211 [a] [7]). ... At issue is whether the facts as alleged by defendants satisfy the elements of those or any other causes of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275).

On a motion to dismiss a counterclaim for failure to state a cause of action, the court must accept its alleged facts as true.

Communications Groups, Inc. v. Warner Communications Inc. · filed 1988-03-28(a)(7)

The court for purposes of this type of motion must accept the facts as alleged in the counterclaim as true.

Under CPLR 3211(a)(7), conclusory allegations are insufficient to withstand a motion to dismiss for failure to state a cause of action.

Bouffard v. Lewis · filed 1988-04-05(a)(7)

Allegations which are conclusory in nature are simply insufficient to withstand a motion to dismiss for failure to state a cause of action.

A dismissal under CPLR 3211(a)(7) for insufficient pleading is not on the merits and does not bar a second complaint that corrects the defects.

Amsterdam Savings Bank v. Marine Midland Bank · filed 1988-05-05(a)(7)

The dismissal of a prior complaint for failure to state facts sufficient to constitute a cause of action is not on the merits and does not bar a second complaint on the same cause of action which corrects the defects or omissions adjudged to exist in the original complaint (Allston v Incorporated Vil. of Rockville Centre, 25 AD2d 545, 546). ... The original complaint herein was dismissed pursuant to a CPLR 3211 (a) (7) motion to dismiss and was not treated as a motion for summary judgment.

Under CPLR 3211(a)(7), a contract appended to and incorporated into a complaint can render its claims legally insufficient when the contract’s terms contradict them.

Manchester Equipment Co. v. Panasonic Industrial Co. · filed 1988-06-13(a)(7)

The causes of action alleged in the complaint, sounding in breach of contract and fraud, were completely undermined and rendered legally insufficient by the very terms of the contract which was appended to the complaint and incorporated by reference into the complaint.

On a motion to dismiss under CPLR 3211(a)(7), the complaint’s allegations are deemed true when the court decides whether they state a claim.

Schwab v. Denton · filed 1988-06-20(a)(7)

In an action, inter alia, to impose a constructive trust upon real property, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Hillery, J.), entered March 5, 1987, which granted the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint. ... According to the amended complaint, the allegations of which are deemed to be true (Latham, v Father Divine, 299 NY 22, 26, rearg denied 299 NY 599), the defendant Kevin Denton, an attorney, represents or has represented two estates through which a certain parcel of realty passed to three residual legatees, whom Kevin Denton also allegedly represented. ... The amended complaint fails to disclose a confidential relationship between the parties or any promise on the part of the defendants or anyone connected with the parcel.

On a motion to dismiss for failure to state a cause of action, the court assumes the alleged facts are true and construes the petition or complaint liberally in the plaintiff’s favor.

Carroll v. Seacroft Plaza, Ltd. · filed 1988-06-20(a)(7)

On a motion to dismiss for failure to state a cause of action each fact alleged must be assumed to be true and the petition or complaint liberally construed in the plaintiff’s favor (see, Barr v Wackman, 36 NY2d 371, 375; MacKay v Pierce, 86 AD2d 655).

On a motion to dismiss for failure to state a cause of action, the court assumes each alleged fact is true and construes the complaint liberally in the plaintiff’s favor.

Carroll v. Seacroft, Ltd. · filed 1988-06-20(a)(7)

On a motion to dismiss for failure to state a cause of action each fact alleged must be assumed to be true and the complaint liberally construed in the plaintiff’s favor (see, Barr v Wackman, 36 NY2d 371, 375; MacKay v Pierce, 86 AD2d 655).

Section 3211(a)(7) requires courts to construe pleadings liberally in the plaintiff’s favor and ask whether the plaintiff has a cause of action, not merely whether it was properly stated.

Friedman v. Friedman · filed 1988-06-21(a)(7)

In determining a motion to dismiss for failure to state a cause of action, the court must liberally construe the pleadings most favorably to the plaintiff (Cohn v Lionel Corp., 21 NY2d 559, 562), and examine whether the plaintiff has a cause of action, not simply whether one has been properly stated.

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s alleged facts as true and construes the complaint liberally.

Lore v. Lore · filed 1988-06-27(a)(7)

Accepting the facts as alleged in the complaint as true and giving the complaint a liberal construction (see, Morone v Morone, 50 NY2d 481; Guggenheimer v Ginzburg, 43 NY2d 268; Klondike Gold v Richmond Assocs., 103 AD2d 821; Shields v School of Law, 77 AD2d 867), we conclude that the first, second, third, fourth and sixth causes of action insofar as they are asserted against the respondents fail to state a cause of action (see, CPLR 3211 [a] [7]).

On a motion under CPLR 3211(a)(7), a complaint survives if its allegations, liberally construed and assumed true, support a cause of action.

Delpopolo v. Zanghi · filed 1988-05-27(a)(7)

Applying those principles, we find that Special Term erred in dismissing the complaint. The allegations, liberally construed and assumed to be true, support a cause of action for a broker’s commission based upon the listing contract.

On a motion to dismiss for failure to state a cause of action, the pleader receives every favorable inference that may be drawn.

Gardner v. Constantine · filed 1988-07-09(a)(7)

In determining whether or not the petition states a valid cause of action, the pleader is entitled to every favorable inference that might be drawn.

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

Beaumont v. American Can Co. · filed 1988-09-20(a)(7)

At the outset, the court notes that in deciding a motion made pursuant to CPLR 3211, it must assume the truth of the allegations of the complaint, with plaintiff given the benefit of every favorable inference.

On a motion to dismiss for failure to state a cause of action, the court accepts the pleading’s factual allegations as true and gives it a liberal construction and all reasonable inferences.

In re Fletcher · filed 1988-10-07(a)(7)

In determining this motion, the court must take the petition’s factual allegations as true (Burlew v American Mut. Ins. Co., 99 AD2d 11, affd 63 NY2d 412 [1984]), and give the complaint a liberal construction and the benefit of all reasonable inferences (Underpinning & Found. Constructors v Chase Manhattan Bank, 46 NY2d 459 [1979]; Westhill Exports v Pope, 12 NY2d 491 [1963]).

On a motion to dismiss for failure to state a cause of action, the court asks whether the complaint gives sufficient notice of the transactions and alleges the elements of a recognized cause of action.

Conroy v. Cadillac Fairview Shopping Center Properties (Maryland), Inc. · filed 1988-10-11(a)(7)

Upon a motion to dismiss a complaint for legal insufficiency, the test to be applied is whether it gives sufficient notice of the transactions, occurrences or series of transactions or occurrences intended to be proven and whether the requisite elements of any cause of action known to our law can be discerned from its averments (see, Pace v Perk, 81 AD2d 444).

A cause of action should not be dismissed under Section 3211(a)(7) if the plaintiff has a reasonable chance of prevailing on the merits.

Davidson Extrusion Corp. v. Manufacturers Hanover Trust Co. · filed 1988-10-17(a)(7)

A cause of action should not be dismissed pursuant to CPLR 3211 (a) (7) as long as there is a reasonable chance that the plaintiff may prevail on the merits (Rovello v Orofino Realty Co., 40 NY2d 633).

On a motion to dismiss for failure to state a cause of action, the court assumes the truth of allegations in the complaint and supporting affidavits.

Lynch v. Bay Ridge Obstetrical & Gynecological Associates · filed 1988-10-27(a)(7)

In addressing defendants’ contention that the claimed negligence could not, as a matter of law, be the proximate cause of the injuries incident to the abortion, we must, of course, assume the truth of the allegations in the complaint and supporting affidavits (Cohn v Lionel Corp., 21 NY2d 559, 562).

On a motion to dismiss for legal insufficiency under § 3211(a)(7), the complaint’s allegations are accepted as true.

Breed, Abbott & Morgan v. Hulko · filed 1988-07-07(a)(7)

The complaint, whose allegations are necessarily accepted as true on this appeal from an order granting defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss for legal insufficiency, alleges that defendant R. Lee Hulko (Hulko) entered into a contract for the purchase of certain real property.

On a motion to dismiss under CPLR 3211(a)(7), the complaint survives if its factual allegations together state any legally cognizable cause of action.

Ness v. Pan American World Airways · filed 1988-11-28(a)(7)

We initially note that when deciding a motion under CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; accord, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506).

On a motion to dismiss for failure to state a cause of action, the court gives the complaint's allegations a favorable interpretation when assessing their sufficiency.

Huebener v. Kenyon & Eckhardt, Inc. · filed 1988-12-01(a)(7)

Giving to the allegations of the complaint the appropriate favorable interpretation required on a motion to dismiss, we are not persuaded that the complaint adequately sets forth facts bringing the claim within the narrowly limited exceptions to the rule set forth in Murtha (supra).

On a motion to dismiss for failure to state a cause of action, the court construes the pleadings liberally in the plaintiff’s favor and assumes the allegations are true.

Virelli v. Goodson-Todman Enterprises, Ltd. · filed 1989-01-05(a)(7)

In addressing defendants’ challenge, we accord the pleadings a liberal construction in plaintiffs’ favor, assuming the truth of the allegations made (see, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 637).

On a motion to dismiss for failure to state a cause of action, the complaint is construed liberally in the plaintiff’s favor and its allegations are accepted as true.

Dash Contracting Corp. v. Slater · filed 1989-01-06(a)(7)

It is well-settled law that when viewing a complaint pursuant to a CPLR 3211 motion for dismissal, the complaint must be construed liberally in favor of the plaintiff (K.S.L.A. Constr. Corp. v Paccione, 102 AD2d 813). The court must accept each and every allegation as true, without expressing any opinion as to whether plaintiff will ultimately be able to establish the truth of these allegations (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506). On this basis, it is clear that plaintiff has set forth sufficient facts from which it may be inferred that the defendant cooperative corporation had control and possession of the apartment and consented to the improvements so as to state a claim.

A complaint that states a cause of action, even if inartfully drafted, withstands dismissal under CPLR 3211(a)(7).

R. H. Sanbar Projects, Inc. v. Gruzen Partnership · filed 1989-03-07(a)(7)

Initially, we note that the complaint, however inartfully drawn, does state a cause of action sufficient to withstand a motion pursuant to CPLR 3211 (a) (7) on behalf of DHT.

On a motion to dismiss for failure to state a cause of action, the court assumes the truth of the complaint and opposing affidavits and gives the plaintiff the benefit of favorable inferences.

Doe v. Roe, Inc. · filed 1989-03-29(a)(7)

In the context in which defendant Roe’s action has been challenged — a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]; see also, Executive Law § 297 [9] [which authorizes a cause of action to recover damages by any person claiming to be aggrieved by unlawful discriminatory practice in any court of appropriate jurisdiction]), the court is obliged to assume the truth of the facts asserted in the complaint and the affidavits opposing dismissal (Rovello v Orofino Realty Co., 40 NY2d 633), and accord plaintiff the benefit of all favorable inferences that may be drawn from his pleadings (see, CPC Intl. v McKesson Corp., 70 NY2d 268, 284-285). Applying this standard to plaintiff’s contentions, I find that a cause of action has been stated.

On a motion to dismiss for failure to state a cause of action, a complaint is read to allege what can reasonably be implied from its statements, without requiring proof of those allegations.

Brooklyn Law School v. Raybon, Inc. · filed 1989-03-29(a)(7)

While this court has some concern over whether the law school will ultimately be able to establish these allegations as to each defendant, "[u]pon a motion to dismiss, a complaint is deemed to allege whatever can reasonably be implied from its statements — and not whether the allegations can be established — considering the complaint as a whole”.

A complaint withstands a motion to dismiss if its factual allegations, taken together, state any legally cognizable cause of action.

Sutton v. Aurnou · filed 1989-04-24(a)(7)

In determining whether a complaint is sufficient so as to withstand a motion pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzberg, 43 NY2d 268, 275).

On a motion to dismiss for failure to state a cause of action, the court assumes the pleaded facts are true and considers whether the necessary allegations are stated or fairly inferred.

Methe v. General Electric Co. · filed 1989-05-04(a)(7)

In short, even assuming, as we must at this juncture, that plaintiff was discharged for lack of work, there is no allegation, or statement from which an allegation may be fairly inferred, that defendant, as an inducement for plaintiff’s services, promised her that termination occasioned by lack of work would be accompanied by certain posttermination benefits.

On a motion to dismiss for failure to state a cause of action, a parent's enrollment of a child in school after the petition was filed is irrelevant, though it may matter at trial.

In re Tameka S. · filed 1989-05-15(a)(7)

Finally, the fact that the respondent, after this petition was filed, may have enrolled Tameka in kindergarten, while relevant at trial, is irrelevant on this motion to dismiss the petition for failure to state a cause of action (see, Matter of "Winters”, 208 Misc 953, supra).

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

Ippolito v. Lennon · filed 1989-05-30(a)(7)

The material allegations of the complaint are deemed to be true, plaintiff is given the benefit of every possible favorable inference and the nature of the inquiry is whether a cause of action exists, not whether it has been properly stated (Arrington v New York Times Co., 55 NY2d 433; Rovello v Orofino Realty Co., 40 NY2d 633; Cohn v Lionel Corp., 21 NY2d 559).

A motion to dismiss an entire complaint for failure to state a cause of action must be denied if at least one cause of action is legally sufficient.

Paulsen v. Paulsen · filed 1989-03-27(a)(7)

A motion to dismiss for failure to state a cause of action will be denied in its entirety where the complaint asserts several causes of action, the motion is aimed at the pleading as a whole without particularizing the specific cause of action sought to be dismissed, and at least one of the causes of action is legally sufficient (Halpern v Halpern, 109 AD2d 818; Martirano Constr. Corp. v Briar Contr. Corp., 104 AD2d 1028; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:26; 4 Weinstein-Korn-Miller, NY Civ Prac If 3211.38).

On a motion to dismiss for failure to state a cause of action, the court gives the complaint and supporting materials their most favorable reading.

Harris v. City of New York · filed 1989-06-13(a)(7)

Furthermore, because the city’s motion attacks the sufficiency of the pleadings (CPLR 3211 [a] [7]), the allegations of the complaint, as supplemented by plaintiffs’ affidavits and the deposition testimony of Calvin Harris, "must be given their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442, supra; Dulberg v Mock, 1 NY2d 54, 56).

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations receive the most favorable construction and are taken as true.

Vergari v. Lockhart · filed 1989-06-22(a)(7)

On a CPLR 3211 (a) (7) motion to dismiss the complaint for failure to state a cause of action, the plaintiffs allegations are given the most favorable construction and are taken as true.

On a motion to dismiss for failure to state a cause of action, the court takes the petition’s allegations as true and asks whether they would warrant relief if proven.

Department of Social Services ex rel. Mark S. v. Felicia B. · filed 1989-06-23(a)(7)

Taking the allegations of the petition as true, as the court must, on a motion to dismiss the petition (Tobin v Grossman, 24 NY2d 609), the petition states facts sufficient which if proven upon trial by a preponderance of the evidence (Family Ct Act § 1046 [b]), would warrant a finding of neglect by the court.

On a CPLR 3211(a)(7) motion, affidavits clarifying the alleged contracts and the defendants’ participation can sufficiently apprise defendants of a breach of contract claim.

James v. Delilah Films, Inc. · filed 1989-07-05(a)(7)

The affidavits of Peter Towe and Chuck Rubin clarify the nature of the contracts and allege that defendants were parties thereto. Thus, defendants have been sufficiently apprised of the plaintiffs’ claims and the cause of action will not be dismissed.

A motion to dismiss under CPLR 3211(a)(7) must be denied if the complaint, read as a whole, states any legally cognizable cause of action.

Glod v. Ashland Chemical Co. · filed 1989-08-22(a)(7)

A CPLR 3211 (a) (7) dismissal motion must be denied if the complaint, read in its entirety, manifests any action cognizable at law.

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

Tuck Industries, Inc. v. Reichhold Chemicals, Inc. · filed 1989-06-12(a)(7)

Assuming the allegations to be true, as we must in entertaining a motion to dismiss pursuant to CPLR 3211 (a) (7) (see, Pace v Perk, 81 AD2d 444), we conclude that the complaint has failed to state a cause of action sounding in fraud.

On a motion seeking dismissal under CPLR 3211 (a), the court assumes the truth of the complaint’s allegations.

Harkin v. Culleton · filed 1989-06-28(a)

For the purposes of this motion, which in essence seeks dismissal on CPLR 3211 (a) grounds, the court will assume the truth of the allegations in the complaint.

On a motion under § 3211(a)(7), the court assesses the sufficiency of the pleadings without requiring the plaintiff to prove the claim.

Roldan v. Allstate Insurance · filed 1989-07-03(a)(7)

Allstate’s motion is addressed solely to the adequacy of the pleadings; the motion was made pursuant to CPLR 3211, not CPLR 3212, and so the plaintiff was not put to her proof.

On a preanswer motion treated like a CPLR 3211 motion, the court accepts the petition’s factual allegations as true and reads them in the petitioner’s favor.

New York State Nurses Ass'n v. Axelrod · filed 1989-07-20

Respondents’ preanswer motion is treated in a manner similar to a CPLR 3211 motion (see, Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 102-103), so that the facts alleged in- the petition are accepted as true and interpreted in a light most favorable to NYSNA (see, Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 940).

CPLR 3211(a)(7) permits a failure-to-state-a-cause-of-action challenge even when the complaint appears valid on its face.

Stowell v. Huntley · filed 1989-10-19(a)(7)

Even though plaintiff’s claim as alleged in her complaint may be perfectly valid on its face, it may still be the subject of attack under CPLR 3211 (a) (7) (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:25, at 31).

Section 3211(a)(7) permits dismissal of a fraud complaint that fails to allege all essential elements of the cause of action.

303 Realty Corp. v. Albert · filed 1989-10-23(a)(7)

Furthermore, we agree with the Supreme Court that the plaintiff’s complaint is defective, not only because it fails to state with particularity the "circumstances constituting the wrong” (CPLR 3016 [b]) but also because it fails to allege all of the essential elements of a cause of action for fraud (CPLR 3211 [a] [7]; see generally, Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc., 88 AD2d 461).

A complaint that omits a required allegation of Loft Law compliance is subject to dismissal under CPLR 3211(a) when the plaintiff’s opposing evidence fails to cure the omission.

Mapama Corp. v. Nadelson · filed 1989-11-02(a)

The complaint was therefore subject to attack by CPLR 3211 (a) motion. Even assuming the taking of all reasonable and necessary action by landlord to attain the standards of Multiple Dwelling Law § 284 would be sufficient compliance, plaintiff’s evidentiary showing in opposition to the motion, attempting to cure its pleading omission, fails to make such a demonstration.

On a motion to dismiss for failure to state a cause of action, the plaintiff’s allegations are deemed true and the pleadings are liberally construed.

Elias v. Handler · filed 1989-11-20(a)(7)

For purposes of a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the plaintiffs allegations are deemed to be true and the pleadings are liberally construed (see, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636; Cohn v Lionel Corp., 21 NY2d 559, 562).

On a motion to dismiss for failure to state a cause of action, the court accepts the plaintiff’s factual allegations as true and determines whether they state a claim.

Chalem v. Bonime · filed 1989-11-21(a)(7)

We are satisfied that, accepting all of plaintiffs factual averments as true, the complaint states causes of action for declaratory relief and for an accounting.

On a motion to dismiss for failure to state a cause of action, CPLR 3211(a)(7) requires the court to determine whether the complaint’s factual allegations, taken together, state a cognizable claim.

Leibowitz v. Bank Leumi Trust Co. · filed 1989-11-27(a)(7)

When deciding a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also, Foley v D’Agostino, 21 AD2d 60).

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

Smukler v. 12 Lofts Realty, Inc. · filed 1989-12-07(a)(7)

Accepting each of plaintiffs factual allegations as true and liberally construing the complaint in favor of plaintiff (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509 [1979]; Metropolitan Transp. Auth. v Triumph Adv. Prods., 116 AD2d 526, 527 [1st Dept 1986]), no reasonable view of the pleaded facts states a cause of action against the defendant Waldman.

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations are deemed true, but dismissal is proper if they still do not establish a claim.

Omnivest Inc. v. Elders Futures, Inc. · filed 1990-01-18(a)(7)

Even if all the allegations against Elders and Donney contained in the complaint were proved, as they are deemed to be for the purposes of the motion, the cause would still not lie for lost future commissions, absent a showing or tortious interference with business relations.

On a motion to dismiss under CPLR 3211(a)(7), the court treats the complaint’s allegations as true but may dismiss a punitive damages claim when those allegations are insufficient.

Kinnarney v. Natale Auto Body · filed 1990-01-18(a)(7)

Although these allegations are to be considered true for the purposes of a motion to dismiss pursuant to CPLR 3211 (a) (7), we find that they fail to allege the requisite "morally culpable conduct” (Halpin v Prudential Ins. Co., 48 NY2d 906, 907) such that an extraordinary showing of a disingenuous or dishonest failure to carry out the contract is possible (see, Naja v Pennsylvania Gen. Ins. Co., supra; see also, O’Dell v New York Prop. Ins. Underwriting Assn., supra).

On a motion to dismiss under CPLR 3211(a)(7), the court reviews the pleadings as clarified by affidavits to determine whether the pleader has a cause of action.

New York State Electric & Gas Corp. v. Aasen · filed 1990-01-18(a)(7)

The standard set forth in Guggenheimer v Ginzburg (43 NY2d 268), Matter of FYM Clinical Lab. v Perales (147 AD2d 840, affd 74 NY2d 539) and Sanbar Projects v Gruzen Partnership (148 AD2d 316) requires a review of the challenged pleadings as clarified by affidavits to determine whether the proponent of the pleadings has a cause of action, not whether he has stated one.

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

L.J. West Diamonds, Inc. v. Coronet Jewelry, Inc. · filed 1989-12-07

In deciding Coronet’s motion to dismiss pursuant to CPLR 3211, the court correctly assumed that the allegations contained in the complaint were true (Rovello v Orofino Realty Co., 40 NY2d 633).

A motion to dismiss for failure to state a cause of action is seldom granted unless the moving papers conclusively establish that the plaintiff has no cause of action.

Schmidt v. Park Avenue Bank, N. A. · filed 1990-03-08(a)(7)

With regard to the defendants’ motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]), it seldom is granted unless the moving papers conclusively establish that plaintiff does not have a cause of action (Bassett Hosp. v Hospital Plan, 89 AD2d 240; Rovello v Orofino Realty Co., 40 NY2d 633).

On a motion to dismiss for failure to state a cause of action under CPLR 3211, the court should leave inferences from the pleaded facts for the trier of fact.

NBT Bancorp, Inc. v. Fleet/Norstar Financial Group, Inc. · filed 1990-03-29

It is important to note that we do not have before us a motion for summary judgment but for dismissal for failure to allege a cause of action. This court should not, therefore, decide what inferences would be drawn from the facts pleaded but leave that for the trier of facts to resolve after the presentation of the evidence.