N.Y. C.P.L.R. § 3211

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

Jiggetts v. Grinker · filed 1990-04-03(a)(7)

In reviewing defendants’ motion to dismiss for insufficiency, we are obliged to assume the truth of the facts asserted in the complaint and the affidavits opposing dismissal and accord plaintiffs the benefit of all favorable inferences that may be drawn from their pleadings (Prudential-Bache Sec. v Citibank, 73 NY2d 263, 275 [citing cases]).

Section 3211(a)(7) requires denial of a motion to dismiss when any reasonable view of the facts alleged in the complaint would entitle the plaintiff to recover.

Giannelli v. St. Vincent's Hospital & Medical Center · filed 1990-04-05(a)(7)

A cause of action is sufficiently stated so as to defeat a motion pursuant to CPLR 3211 (a) (7) if upon any reasonable view of the facts alleged in the complaint, plaintiff would be entitled to recover. ... Plaintiff alleged facts sufficient to state each cause of action against the hospital defendants.

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

Moss v. Moche · filed 1990-04-09(a)(7)

Accordingly, the dismissal of the complaint pursuant to CPLR 3211 (a) (7) was appropriate.

On a motion to dismiss for failure to state a cause of action, the court asks whether the complaint’s factual allegations disclose any legally cognizable claim.

Luckel v. Kolinsky · filed 1990-04-19(a)(7)

The criterion applied on a motion to dismiss is whether the complaint as a pleading states any cause of action cognizable at law which is discernible from the factual allegations contained within the four corners of the complaint (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Foley v D’Agostino, 21 AD2d 60, 64-65).

A complaint alleging negligence survives a motion to dismiss when it gives adequate notice of how the defendants were negligent.

Schneider v. Lazard Freres & Co. · filed 1990-03-13(a)(7)

We agree with the shareholders that the complaint gives adequate notice of how the bankers were negligent.

Section 3211(a)(7) requires courts to give a complaint and documents submitted in opposition every reasonable inference when deciding whether a cause of action is sufficiently pleaded.

Klebe v. Tri-Municipal Sewer Commission · filed 1990-04-02(a)(7)

Having determined that the Sewer Commission has failed to establish its entitlement to absolute immunity, we further conclude that the Supreme Court erred in granting those branches of its cross motion which were to dismiss the second, third and fourth causes of action asserted in the complaint pursuant to CPLR 3211 (a) (7).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as fact, and a facially sufficient allegation of damages survives dismissal.

Gair Co. v. Cambridge Carpet Ltd. · filed 1990-04-12

On a motion to dismiss, the complaint’s allegations must be accepted as fact. Plaintiff’s allegation of damages is sufficient on its face.

Under CPLR 3211(a)(7), a complaint survives a motion to dismiss if it states a cause of action when the plaintiff receives every possible favorable inference.

U.B.A., Inc. v. New York City Taxi & Limousine Commission · filed 1990-05-03(a)(7)

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.

A motion under CPLR 3211(a)(7) tests whether the complaint states a cognizable cause of action, and a plaintiff need not submit evidence to establish a claim when the motion challenges only the pleading.

Bradley v. County of Albany · filed 1990-05-31(a)(7)

CPLR 3211 (a) (7) motions to dismiss question whether the complaint states a cognizable cause of action (see, Foley v. D’Agostino, 21 AD2d 60, 65), not whether the claim has merit (supra, at 66). Inasmuch as defendants’ motion merely attacked the adequacy of the pleading and not its merits, plaintiff was not required to submit evidence establishing the causes of action alleged (see, 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.36).

Section 3211(a)(7) does not treat failure to comply with CPLR 3012-a as failure to state a cause of action.

Kolb v. Strogh · filed 1990-06-11(a)(7)

Similarly, in light of the literal approach taken by the Tewari court, a failure to comply with CPLR 3012-a cannot be considered a failure to state a cause of action, which is curable upon a showing of merit (CPLR 3211 [a] [7], [e]; see, Sullivan v H.I.P. Hosp., 138 Misc 2d 711).

On a motion to dismiss under CPLR 3211(a)(7), the court views the complaint’s allegations most favorably to the plaintiff when deciding whether they sustain a cause of action.

Misek-Falkoff v. International Business Machines Corp. · filed 1990-06-14(a)(7)

Viewing the allegations of the complaint most favorably to the plaintiff, the conduct alleged was not so egregious as to sustain the cause of action (Murphy v American Home Prods. Corp., 58 NY2d 293).

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

Urban Holding Corp. v. Haberman · filed 1990-06-14(a)(7)

Under CPLR 3211 (a) (7), a motion to dismiss is properly granted if the pleading fails to state a cause of action and is, therefore, defective on its face.

On a motion to dismiss for failure to state a cause of action, Section 3211 requires the court to treat the complaint’s allegations as true and determine whether they sufficiently state a claim.

Equitable Life Assurance Society of United States v. Rocanova · filed 1990-06-19(a)(7)

With regard to the motion to dismiss pursuant to CPLR 3211, the allegations in the complaint, which we must deem to be true (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509), sufficiently stated a cause of action for rescission based on material misrepresentations (Insurance Law § 3105 [b]; Wageman v Metropolitan Life Ins. Co., 24 AD2d 67, affd 18 NY2d 777; Process Plants Corp. v Beneficial Natl. Life Ins. Co., 53 AD2d 214, affd 42 NY2d 928).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations as true and finds it sufficient if any reasonable view of the alleged facts permits recovery.

Marcus v. Jewish National Fund (Keren Kayemeth Leisrael), Inc. · filed 1990-06-21(a)(7)

In deciding a motion pursuant to CPLR 3211 (a) (7), the "sole question presented for our 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” (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509).

On a motion to dismiss under CPLR 3211(a)(7), the court examines whether the claimant has a cause of action, not merely whether one is stated in the complaint.

Burdett Radiology Consultants, P. C. v. Samaritan Hospital · filed 1990-06-28(a)(7)

Turning now to defendants’ cross motion to dismiss the complaint, we initially note that in view of the motion’s treatment by the parties and Supreme Court, the nature of the motion was clearly one of dismissal pursuant to CPLR 3211 (a) (7) and our review proceeds accordingly. Pertinent to our examination of plaintiffs’ complaint is “whether claimant has a cause of action, not whether one has been stated in the complaint” (Brown v State of New York, 125 AD2d 750, 751, lv dismissed 70 NY2d 747 [emphasis supplied]).

On a motion to dismiss for failure to state a cause of action, the court considers allegations reasonably implied by the complaint, regardless of how artfully it is drafted.

Stendig, Inc. v. Thom Rock Realty Company · filed 1990-07-03(a)(7)

The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (Feinberg v Bache Halsey Stuart, 61 AD2d 135, 137-138; Edwards v Codd, 59 AD2d 148, 149).

Section 3211(a)(7) requires liberal construction of the pleading, but permits dismissal with prejudice when the moving papers conclusively establish that no cause of action exists.

Ming v. Hoi · filed 1990-07-26(a)(7)

Upon a motion to dismiss, a pleading will be liberally construed and such motion will not be granted unless, as here, the moving papers conclusively establish that no cause of action exists (CPLR 3211 [a] [7]; Ragto, Inc. v Schneiderman, 69 AD2d 815, affd 49 NY2d 975). Here, the plaintiffs have failed to set forth a triable claim and thus dismissal with prejudice is appropriate.

On a preanswer motion under CPLR 3211 (a) (7), a complaint survives if its allegations show any cognizable cause of action; when evidence is considered, the question is whether the plaintiff has a cause of action.

Pokoik v. Village of Ocean Beach · filed 1990-07-31(a)(7)

As this is a preanswer motion to dismiss, so much of the application which is based on a CPLR 3211 (a) (7) ground must be weighed against the well-established standard that, if from the four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal should fail; further, when evidentiary material is considered (as here), the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v Ginzburg, 43 NY2d 268).

On a motion to dismiss for failure to state a cause of action, the complaint’s material allegations are taken as true, and the question is whether a cause of action exists.

Rosen v. Raum · filed 1990-08-16(a)(7)

The material allegations of the complaint must be deemed to be true and the proper inquiry is whether a cause of action exists, not whether it has been properly stated.

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

Harley v. Perkinson · filed 1990-09-28(a)(7)

Defendant’s motion is in the nature of a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7). ... The court must liberally construe the complaint in plaintiff’s favor, deem each allegation therein to be true and accord the plaintiff every favorable inference which may be drawn (Barr v Wackman, 36 NY2d 371; MacDonald v Howard, 91 AD2d 1119).

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

Harley v. Druzba · filed 1990-09-29(a)(7)

The court must liberally construe the complaint in plaintiff’s favor, deem each allegation therein to be true and accord the plaintiff every favorable inference which may be drawn (Barr v Wackman, 36 NY2d 371; MacDonald v Howard, 91 AD2d 1119).

On a CPLR 3211(a)(7) motion addressed to the face of the complaint, defenses requiring consideration of the merits may be considered on summary judgment or at trial.

Long Island Lighting Co. v. County of Suffolk · filed 1990-10-15(a)(7)

The county’s contentions that LILCO’s contract claim impermissibly interferes with its exercise of police power and is barred by the doctrine of sovereign immunity are not dispositive on a motion addressed to the face of the pleadings, but may appropriately be considered on a motion pursuant to CPLR 3212 addressed to the merits or upon a trial of the action.

CPLR 3211(a)(7) permits dismissal of a complaint that fails to state a cause of action upon which relief can be granted.

McEntee v. Van Cleef & Arpels, Inc. · filed 1990-10-25(a)(7)

Order, Supreme Court, New York County (Burton Sherman, J.), entered on August 24, 1989, which granted defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs. ... Upon review of the record, we find that the IAS court did not err in dismissing the amended complaint, in its entirety, as a matter of law, for failure to state a cause of action upon which relief could be granted.

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

Dugway, Ltd. v. Fizzinoglia · filed 1990-10-25(a)(7)

Accepting the allegations in the complaint as true, as we must ... on a CPLR 3211 motion ... we conclude that the complaint fails to sufficiently state an articulable cause of action.

CPLR 3211(a)(7) tests the legal sufficiency of a complaint, which receives liberal construction even after issue is joined.

1090 Jericho Corp. v. Elias · filed 1990-08-06(a)(7)

Although issue has been joined (see, CPLR 3212), the application insofar as is here pertinent was addressed only to the legal sufficiency of the causes of action (see, CPLR 3211 [a] [7]; see also, Rovello v Orofino Realty Co., 40 NY2d 633; cf., Guggenheimer v Ginzburg, 43 NY2d 268). ... However, despite the liberal construction to be accorded to the amended complaint, and although it is sufficient to sustain common-law tort causes of action, we conclude that the cause of action premised on violation of constitutional rights must be dismissed.

A complaint seeking payment under a guarantee states a cause of action when the debt arose before the guarantor terminated the guarantee, even if the debt was later renewed.

Chemical Bank v. TRP Energy Sensors, Inc. · filed 1990-10-02(a)(7)

We agree with the IAS court to the extent that the complaint stated a cause of action.

On a motion to dismiss under subsection (a)(7), the court must take the petition’s allegations as true.

Axelrod v. French · filed 1990-07-16(a)(7)

For the purposes of this motion to dismiss, the allegations of the petitions must be taken as true.

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

H20 Swimwear, Ltd. v. Lomas · filed 1990-08-16(a)(7)

We further agree with the IAS Part’s denial of defendant Lomas’ motion to dismiss the first cause of action against her, since the allegation that she was a director of H20 must, for the purposes of the motion to dismiss, be accepted as true.

On a motion to dismiss for failure to state a cause of action, the court must accept the factual allegations in the petition and supporting affidavit as true.

Foxell v. New York City Human Resources Administration · filed 1990-11-01(a)(7)

Accepting the factual allegations in the petition and supporting affidavit as true, as the court must on a motion to dismiss pursuant to CPLR 3211 (a) (7), petitioner has sufficiently stated a cause of action for unlawful discrimination in violation of the Human Rights Law (Executive Law art 15).

Under CPLR 3211(a)(7), conclusory allegations of attorney negligence without specific supporting facts are insufficient to state a legal malpractice claim.

Robinson v. Jacoby & Meyers · filed 1990-11-01(a)(7)

The complaint fails to allege any specific facts to show that the defendant attorneys acted negligently. Rather, plaintiff alleges only that the process server hired to serve process on plaintiffs wife in the divorce action in connection with which defendants were retained never served plaintiffs wife yet forwarded an affidavit of service to defendants. The allegations that defendants were thereafter negligent are wholly conclusory, and are therefore legally insufficient to charge an attorney with negligence and malpractice.

Under CPLR 3211(a)(7), a legal malpractice complaint survives dismissal if, given every favorable inference, it states a cause of action.

Camarda v. Danziger · filed 1990-11-08(a)(7)

Plaintiffs complaint, when given the benefit of every favorable inference (Rovello v Orofino Realty Co., 40 NY2d 633, 634), states a cause of action for legal malpractice.

On a motion to dismiss for failure to state a claim, the court gives the complaint’s allegations every favorable inference.

McGuire v. Epstein · filed 1990-11-19(a)(7)

According every favorable inference to the allegations of the plaintiffs second cause of action (see generally, Sanders v Winship, 57 NY2d 391; Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, affd 67 NY2d 778), we conclude that a prima facie claim based on the tort of malicious prosecution has been stated.

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

Wine Cellars, Ltd. v. Austin Nichols & Co. · filed 1990-11-19(a)(7)

Assuming the factual allegations of the complaint to be true for the purposes of this motion (see, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Kushner v King, 126 AD2d 466), and being mindful of the liberal construction to be afforded pleadings (see, CPLR 3026), we conclude that the Supreme Court acted properly in denying the motion to dismiss the complaint for failure to state a cause of action (see, Maison Lazard Et Compagnie v Manfra, Tordella & Brooks, 585 F Supp 1286; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556; Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 199 Misc 786, affd 279 App Div 632).

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

Figueroa v. Market Training Institute, Inc. · filed 1990-11-26(a)(7)

Viewing the allegations in the complaint as true (see, Grand Realty Co. v City of White Plains, 125 AD2d 639), the Department has not simply failed to act in a timely manner—it has totally abdicated its responsibility.

Under CPLR 3211(a)(7), a complaint that sufficiently states a legally cognizable cause of action withstands a motion to dismiss.

Klein v. Schifenbauer · filed 1990-12-03(a)(7)

The Supreme Court correctly determined that the complaint sufficiently stated a cause of action cognizable at law against the defendant Milton Schifenbauer individually, sufficient to withstand a motion to dismiss (see, CPLR 3211 [a] [7]; Nolechek v Gesuale, 46 NY2d 332; Rosenberg v Mermelstein, 116 AD2d 712; see also, Guggenheimer v Ginzberg, 43 NY2d 268, 275).

On a motion to dismiss for failure to state a cause of action, the court accepts the allegations as true and views them in the light most favorable to the plaintiff.

Majer v. Schmidt · filed 1991-01-17(a)(7)

We find that, viewing the allegations, as we must on a motion addressed to the pleadings, as true and in a light most favorable to plaintiffs (219 Broadway Corp. v Alexanders, Inc., 46 NY2d 506), they are legally sufficient to support a finding of constructive notice.

Section 3211(a)(7) does not warrant dismissal of a contract claim when the pleadings leave a question of fact about whether the plaintiff was a party to the agreement.

Limited, Inc. v. McCrory Corp. · filed 1991-01-29(a)(7)

We disagree with the conclusion of the IAS court that the stock purchase agreement, on its face, so clearly includes the Lerner Group as a party that dismissal is warranted on this basis pursuant to CPLR 3211 (a) (7). On the contrary, since the Lerner Group is excluded from the agreement’s preamble, definitions and signature sections, there is a question of fact as to whether or not it was a party to the agreement or merely the subject of it.

Under CPLR 3211(a)(7), a defamation complaint may be dismissed only if the contested language is not susceptible of defamatory meaning as a matter of law.

Bardey v. Brooke-Hitching · filed 1990-11-08(a)(7)

However, the criterion for dismissal of a complaint for defamation is that the contested language is not susceptible of defamatory meaning as a matter of law (Matherson v Marchello, 100 AD2d 233, 240; see also, Weiner v Doubleday & Co., 74 NY2d 586, 592-593, cert denied — US —, 110 S Ct 2168; Khan v Newsweek, Inc., 160 AD2d 425, 426).

On a motion under Section 3211(a)(7), the court accepts the complaint’s allegations as true unless it treats the motion as one for summary judgment on proper notice.

Methe v. General Electric Co. · filed 1991-01-03(a)(7)

Since defendant elected to move to dismiss the amended complaint pursuant to CPLR 3211 (a) (7), and since Supreme Court did not treat the motion as one for summary judgment on proper notice to the parties (see, CPLR 3211 [c]), we must accept the allegations of the pleading as true for the purpose of deciding the motion (see, Matter of FYM Clinical Lab. v Perales, 147 AD2d 840, 841, affd 74 NY2d 539), including the allegation that plaintiff was discharged for lack of work (Methe v General Elec. Co., 150 AD2d 853, 854, supra).

Section 3211(e) permits a failure-to-state-a-cause-of-action defense to be raised at any time, even if omitted from the answer.

Shaw v. Friedman · filed 1991-02-01(e)

In addition, defendant’s failure to raise the affirmative defense of failure to state a cause of action in his answer is not fatal because the defense may be raised at any time and survives the joinder of issue (see, CPLR 3211 [e]).

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 by fair and reasonable intendment.

Gerardi v. Nuclear Utility Services, Inc. · filed 1991-02-07(a)(7)

In deciding the motion to dismiss for failure to state a cause of action, the allegations of the complaint must be assumed to be true ... and the complaint be deemed to allege whatever can be imputed from its statements by a fair and reasonable intendment, however imperfectly, informally or illogically facts may be stated therein.

Section 3211(a)(7) asks whether the pleading states any cause of action, without requiring evidentiary support for the complaint.

LoPinto v. J. W. Mays, Inc. · filed 1991-02-19(a)(7)

It is well settled that the issue on a motion pursuant to CPLR 3211 (a) (7) is limited to ascertaining whether the pleading states any cause of action, and not whether there is evidentiary support for the complaint (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 634; Holly v Pennysaver Corp., 98 AD2d 570, 571).

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

Goldberg v. KZ 72nd · filed 1991-03-19(a)(7)

In lieu of answering, defendants filed a motion for an order, inter alia, pursuant to CPLR 3211 (a) (1) and (7) dismissing the complaint. The IAS court denied the motion. We are satisfied that a cause of action has been pleaded and exists with respect to the first, second and fourth causes of action and, therefore, affirm the order of the IAS court to that extent.

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

Wilomovsky v. Caples · filed 1991-04-08(a)(7)

Contrary to the appellant’s further contention with respect to Appeal No. 2, the Supreme Court properly granted the County of Suffolk’s motion, pursuant to CPLR 3211 (a) (7), to dismiss his complaint on the ground that it failed to state a cause of action.

On a motion to dismiss for failure to state a cause of action, the court gives the complaint all possible favorable inferences.

Chemical Bank v. Brout & Co. · filed 1991-04-23(a)(7)

Giving plaintiff the benefit of all possible favorable inferences which might be drawn from the complaint (Arrington v New York Times Co., 55 NY2d 433, rearg denied 57 NY2d 669, cert denied 459 US 1146), the complaint sufficiently sets forth a cause of action for accountants’ negligence under the criteria set forth in Credit Alliance Corp. v Andersen & Co. (65 NY2d 536).

On a motion under CPLR 3211(a)(7), the court must accept the plaintiff’s allegations as true.

Sunrise Associates v. Pilot Realty Co. · filed 1991-02-07(a)(7)

Accepting plaintiff purchaser’s allegations as true, as the court must on a motion pursuant to CPLR 3211 (a) (7), it appears that plaintiff has pleaded a valid cause of action for return of its down payment.

On a motion to dismiss for failure to state a cause of action, the court must give the complaint every fair and reasonable intendment.

Teller v. Hayes · filed 1991-04-08(a)(7)

According the complaint every fair and reasonable intendment, as we must on a motion to dismiss (see, Klebe v TriMunicipal Sewer Commn., 160 AD2d 677; Goldsmith v Stern-berg, 125 AD2d 365; Pace v Perk, 81 AD2d 444, 449), we find that the third cause of action is sufficient against the defendant Hayes in his individual capacity.

Under CPLR 3211(a)(7), a complaint may be dismissed for failure to state a cause of action even after the court considers the plaintiff's opposition affidavits and documents.

Rotanelli v. Madden · filed 1991-04-29(a)(7)

However, even when viewed in this manner, we find that the amended complaint, together with the plaintiffs affidavits and documents annexed in opposition to the motions, were insufficient to withstand dismissal pursuant to CPLR 3211 (a) (7).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the complaint in the pleader’s favor and asks whether it alleges a recognizable claim.

Limited v. Tompkins · filed 1991-04-30(a)(7)

Consequently, consideration must be limited to whether the complaint, liberally construed in favor of the pleader, asserts on its face some recognizable cause of action (World Wide Adj. Bur. v Gordon Co., 111 AD2d 98).

On a motion under CPLR 3211(a)(7), the court accepts material allegations as true and treats the complaint as alleging what can fairly and reasonably be implied.

Gross v. New York Times Co. · filed 1991-06-10(a)(7)

On a motion to dismiss for failure to state a cause of action, the court is obligated to accept the material allegations as true (Morone v Morone, 50 NY2d 481, 484 [1980]), and the complaint is deemed to allege whatever can be fairly and reasonably implied (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a motion to dismiss under subsection (a)(7), the complaint is construed liberally and its allegations are accepted as true when deciding whether it states a cause of action.

Phillipe v. American Express Travel Related Services Co. · filed 1991-06-18(a)(7)

However, construing the complaint liberally and accepting plaintiffs allegations as true at this stage, as we must, the allegations of a large scale pattern of "sewer service” are sufficient, if proven, to establish a cause of action for abuse of process.

Section 3211(a)(7) permits dismissal when the facts alleged within the complaint support no cognizable cause of action.

Pravato v. Pravato · filed 1991-07-01(a)(7)

Although the plaintiffs here assert that the defendant violated a duty ordinarily owed independently of the parent-child relationship (see, Holodook v Spencer, 36 NY2d 35, 50), we discern no facts within the four corners of the complaint which support any cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275) other than one premised on negligent parental supervision, a cause of action not cognizable in New York (Holodook v Spencer, supra; Parsons v Wham-O, Inc., 150 AD2d 435, 436; McGill v McGill, 127 AD2d 996).

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

Davidman v. Davidman · filed 1991-07-22(a)(7)

However, we do agree with the defendant that the fifth and sixth causes of action in the complaint, seeking, in relevant part, the imposition of a constructive trust with regard to the marital residence, should be dismissed for failure to state a cause of action pursuant to CPLR 3211 (a) (7).

On a CPLR 3211 motion to dismiss, the court assumes the complaint’s allegations are true when deciding whether it states a cause of action.

People ex rel. Washburn v. Frank B. Hall & Co. · filed 1991-06-03

Assuming the truth of the allegations contained in the complaint, as this court must on a motion to dismiss pursuant to CPLR 3211 (see, Sanders v Winship, 57 NY2d 391), ... Accordingly, it would be premature to dismiss the complaint as against Hall at this early stage of the litigation.

When extrinsic evidence attacks a complaint on a motion to dismiss, the court asks whether the plaintiff has a cause of action without assuming the pleading allegations are true.

Castro v. New York Life Insurance · filed 1991-07-29(a)(7)

In the case at bar, extrinsic evidence has been submitted by defendant which attacks the complaint. The truthfulness of the pleading allegations, therefore, is not assumed and the court’s inquiry is as to whether the plaintiff has a cause of action (Rovello v Orofino Realty Co., supra; 219 Broadway Corp. v Alexander’s, Inc., supra).

A complaint survives a CPLR 3211(a)(7) motion when it adequately alleges a cause of action.

Peress v. Peress · filed 1991-09-24(a)(7)

We find that the IAS court did not err in determining that the complaint adequately alleges acts of cruel and inhuman treatment that form a continuous course of conduct extending into the five-year limitation period established in Domestic Relations Law § 210 (see, Grubman v Grubman, 156 AD2d 200).

Section 3211(a)(1) and (7) permits dismissal of counterclaims when documentary evidence and the pleading itself show that they state no cause of action.

88 Blue Corp. v. Staten Builders Co. · filed 1991-10-10(a)(1), (a)(7)

On this CPLR 3211 (a) (1) and (7) motion addressed to the ...second and third counterclaims, the documentary evidence, and indeed the counterclaim pleading itself, make it abundantly clear that sellers have no cause of action (4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.06; Rovello v Orofino Realty Co., 40 NY2d 633, 636).

A fraudulent inducement counterclaim concerning a note guarantee may survive a motion to dismiss for failure to state a cause of action.

Zaro Bake Shop, Inc. v. David · filed 1991-10-24(a)(7)

We also reject the plaintiff’s contention that the counterclaim must be dismissed on the ground that it failed to state a cause of action (see, CPLR 3211 [a] [7]).

When assessing pleading sufficiency under CPLR 3211, the court views the petition and supporting affidavits in the light most favorable to the petitioners.

Averbach v. Board of Assessors · filed 1991-10-31

Accordingly, we treat respondents’ motions as directed only to the sufficiency of the pleadings in a manner similar to the determination of a CPLR 3211 motion (see, Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 940). ... Taking into account that the petition and its supporting affidavits must be viewed in the light most favorable to petitioners, we find that petitioners have sufficiently stated a cause of action against respondents for purportedly utilizing an unconstitutional reassessment methodology (see, Matter of Board of Educ. v State Educ. Dept., supra, at 941).

A complaint survives a motion to dismiss under CPLR 3211(a)(7) when its allegations suffice to state causes of action for implied contract, unjust enrichment, and misappropriation.

Corto v. Fujisankei Communications International, Inc. · filed 1991-11-19(a)(7)

Order, Supreme Court, New York County (William J. Davis, J.), entered on or about February 15, 1991, which, to the extent appealed from, denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), is unanimously affirmed, with costs. ... These allegations suffice to make out causes of action for implied contract, unjust enrichment and misappropriation, regardless of whether the theory be that of a reverse unilateral contract (see. Calamar! and Perillo, Contracts §2-10, at 70 [3d ed]), which became binding upon plaintiff’s performance as posited by IAS, or a conditional promise which became binding upon performance or defendants’ acceptance and use of plaintiff’s program (see, 1 Williston, Contracts § 106, at 427 [3d ed]).

Under CPLR 3211(a)(7), a defamation complaint states a cause of action if any reasonable view of its alleged facts would entitle the plaintiff to recover.

O'Loughlin v. Patrolmen's Benevolent Ass'n · filed 1991-12-03(a)(7)

Order of the Supreme Court, Bronx County (Barry Salman, J.), entered August 20, 1990 which, inter alia, granted defendants’ motion to dismiss this defamation action for failure to state a cause of action (CPLR 3211 [a] [7]), unanimously affirmed, without costs. ... The standard to be applied on such a motion is stated in Silsdorf v Levine (59 NY2d 8, 12, cert denied 464 US 831): "If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action” (citing 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509).

Section 3211(a)(7) does not warrant dismissal when the complaint properly pleads the elements of fraud and breach of contract.

Hakko v. Silverberg · filed 1991-12-05(a)(7)

We agree that plaintiff has properly pleaded the elements of fraud and breach of contract.

On a motion to dismiss for failure to state a cause of action, the complaint survives if its allegations, given every favorable inference, state a cause of action.

West 97th-West 98th Streets Block Ass'n v. Volunteers of America · filed 1991-12-13(a)(7)

Different standards apply to a motion to dismiss for failure to state a cause of action and to a motion for a preliminary injunction. "[A] complaint should not be dismissed on pleadings so long as, giving plaintiff the benefit of every possible favorable inference contained in his allegations, a cause of action exists.” ... This court is of the opinion that the complaint states a cause of action under the Fair Share Rules based on the involvement of various city agencies and the fact that the project, in particular the funding, was not fully implemented at the time the Fair Share Rules became effective.

On a motion to dismiss under CPLR 3211(a)(5) based on the Statute of Limitations, the court assumes the complaint’s allegations are true.

Bassile v. Covenant House · filed 1991-08-12(a)(5)

In addressing the Statute of Limitations question, I assume the truth of the allegations contained in this complaint, as I must.

On a motion to dismiss under CPLR 3211(a)(7), a complaint alleging that a defendant used a corporation as an alter ego is sufficient when it contains solid, nonconclusory allegations.

Sequa Corp. v. Christopher · filed 1991-10-08(a)(7)

The IAS court properly found the pleadings adequate, since it cannot be said that the complaint "is totally devoid of solid, nonconclusory allegations” regarding defendant Christopher’s use of defendant Resolute as his corporate alter-ego (Perez v One Clark St. Hous. Corp., 108 AD2d 844, 845).

On a motion to dismiss under CPLR 3211(a)(7), allegations of interference with contractual relationships beyond the one underlying a breach of contract claim can be sufficient to survive dismissal.

Saha v. Record · filed 1991-11-07(a)(7)

As to the cause of action based upon tortious interference with a contract, the allegations are sufficient to survive a motion to dismiss, at least insofar as they claim interference with contractual relationships other than the relationship that served as the basis for the breach of contract cause of action.

On a motion to dismiss, pleadings receive their most favorable construction; a sufficiently stated legal malpractice claim survives.

Scheller v. Martabano · filed 1991-11-25(a)(7)

The plaintiffs are seeking the reinstatement of their complaint which was dismissed in its entirety pursuant to CPLR 3211 (a) (7) and (1). Giving the pleadings "their most favorable intendment” ... we find that the plaintiffs’ first cause of action to recover damages for legal malpractice based upon faulty legal advice ... is sufficiently stated (see, 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 court construes the complaint generously and in the plaintiff’s favor.

Petri v. Bank of New York Co. · filed 1992-02-11(a)(7)

Construing the pleading generously and most favorably to the plaintiff, as I must ... I conclude that plaintiff has ... stated a cause of action insofar as plaintiff can be deemed to allege that he was fired because it was thought that he had been infected by HIV, though asymptomatically, as opposed to being perceived as actually suffering from AIDS itself (discussed above).

On a motion to dismiss for failure to state a cause of action, the court must accept the plaintiff’s stated facts in the light most favorable to the plaintiffs.

Rotondo v. Reeves · filed 1992-02-11

On a motion to dismiss a complaint because of failure to state a cause of action, the court is required to accept the facts as stated by the plaintiff in a manner most favorable to the plaintiffs.

Under CPLR 3211(a)(7), conclusory allegations of wrongful conduct do not satisfy the pleading requirement for a tortious interference claim.

Joel v. Weber · filed 1992-03-02(a)(7)

The conclusory allegations that Brinkley acted "wrongfully, knowingly, intentionally, maliciously and without reasonable justification or excuse” are insufficient to satisfy the pleading requirement (see, Gertler v Goodgold, 107 AD2d 481, 490 [1st Dept 1985], affd 66 NY2d 946 [1985]; John R. Loftus, Inc. v White, 150 AD2d 857, 860 [3d Dept 1989]; Susskind v Ipco Hosp. Supply Corp., supra). Therefore, the complaint fails to state a cause of action and is dismissed.

On a motion to dismiss under CPLR 3211(a)(7), courts treat the complaint’s allegations and their reasonable implications as true when assessing whether the pleading states a cause of action.

National Enterprises Corp. v. Price · filed 1992-03-05(a)(7)

Furthermore, the IAS court, in deciding the motion to dismiss the complaint, properly considered plaintiffs’ allegations to be true and everything reasonably to be implied therefrom (Rovello v Orofino Realty Co., 40 NY2d 633) and properly determined that the pleading recited sufficient facts to sustain causes of action sounding in legal malpractice (see, Metrokane Imports v Kane, Dalsimer, Kane, Sullivan & Kurucz, 150 AD2d 153, 155) and implied indemnification (see, Mas v Two Bridges Assocs., 75 NY2d 680), and we find no bar to a recovery for legal expenses incurred (see, Owens v Palm Tree Nursing Home, 89 AD2d 619, 621).

Section 3211(a)(7) does not warrant dismissal of a quiet-enjoyment claim based on partial constructive eviction when a factual issue remains about abandonment of part of the premises.

Bernard v. 345 East 73rd Owners Corp. · filed 1992-03-19(a)(7)

While we agree with the IAS court that a cause of action for nuisance does not lie as against defendants-respondents since they did not create the nuisance and had surrendered control of the premises to codefendant-tenant of the apartment above plaintiffs (New York Tel. Co. v Mobil Oil Corp., 99 AD2d 185, 188-189), the cause of action for breach of the covenant of quiet enjoyment, predicated upon a partial constructive eviction, should not have been dismissed pursuant to either CPLR 3211 (a) (7) or 3212 where, as here, an issue of fact exists as to whether, as plaintiff alleges, a portion of the disturbed premises has been abandoned (see, Minjak Co. v Randolph, 140 AD2d 245).

A complaint can survive a motion to dismiss for failure to state a cause of action when it alleges that defendants knowingly wrote checks that substantially assisted a fraudulent scheme.

Slavenburg Corp. v. Baby Doll Infants Wear Co. · filed 1992-03-19(a)(7)

— Order, Supreme Court, New York County (Myriam Altman, J.), entered February 19, 1991, which denied defendants-appellants’ motion to dismiss the complaint as against them pursuant to CPLR 3211 (a) (7) and 3016 (b), unanimously affirmed, with costs. ... If knowledge of the fraud can be established, the writing of the checks was clearly substantial assistance to the scheme so as to support a cause of action for aiding and abetting the fraud.

On a motion under section 3211(a)(7), the court assumes the truth of the complaint’s material allegations and reasonable inferences.

McGill v. Parker · filed 1992-03-24(a)(7)

The standards in determining a CPLR 3211 (a) (7) motion for dismissal for failure to state a cause of action are well known. ... Such a motion assumes the truth of the complaint’s material allegations and whatever can be reasonably inferred therefrom.

Section 3211(a)(7) does not warrant dismissal of a third-party indemnity complaint that states a cause of action based on acts allegedly directed by a principal.

Lipsig v. Bykofsky · filed 1992-03-24(a)(7)

Accordingly, Bykofsky’s third-party complaint should not have been dismissed for failure to state a cause of action.

CPLR 3211(a)(7) permits dismissal of a complaint that fails to allege the elements of fraud.

Lejkowski v. Petrou · filed 1991-12-09(a)(7)

The Supreme Court thus properly dismissed the complaint for the plaintiff’s failure to allege the elements of fraud (see, CPLR 3211 [a] [7]; ...).

CPLR 3211(a)(7) addresses whether the pleadings sufficiently state a cause of action.

Lewis v. Hertz Corp. · filed 1992-03-10(a)(7)

The issue presented by the instant motion and cross-motion was not that of a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action, which merely addresses the sufficiency of pleadings, but a motion for summary judgment pursuant to CPLR 3212, which searches the record and looks to the sufficiency of the underlying evidence (Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467).

Allegations of undercapitalization, intermingled assets, and individual domination of corporations can suffice to sustain veil-piercing claims on a CPLR 3211 motion to dismiss.

107 Realty Corp. v. National Petroleum U.S.A., Ltd. · filed 1992-03-23

The allegations in these causes of action are sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (see, Walkovszky v Carlton, 18 NY2d 414, 420; Menaker v Alstaedter, 134 AD2d 412, 413).

On a section 3211(a)(7) motion, the court views the plaintiff’s allegations favorably and considers submissions supporting them when deciding whether a cause of action is stated.

Sandra Greer Real Estate, Inc. v. Johansen Organization · filed 1992-04-14(a)(7)

Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered March 11, 1991, which denied the defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss plaintiff’s third cause of action alleging fraud, unanimously reversed, on the law, the motion granted, and the third cause of action is dismissed, without costs. ... The allegations of plaintiff’s third cause of action, even when viewed in the light most favorable to plaintiff as supported by its submissions on the motion (Arrington v New York Times Co., 55 NY2d 433, 442; Rovello v Orofino Realty Co., 40 NY2d 633), do no more than restate plaintiff’s breach of contract claims.

On a motion to dismiss for failure to state a cause of action, the court gives the complaint and evidence submitted in opposition every favorable consideration when assessing whether the claims are adequately pleaded.

Board of Managers v. Dylan Carpet, Inc. · filed 1992-04-23

Upon giving the complaint and evidentiary material submitted in opposition to the motion every favorable consideration (Arrington v New York Times Co., 55 NY2d 433, 442; Rovello v Orofino Realty Co., 40 NY2d 633), we find that the fourth and six causes of action of the complaint were adequately pleaded.

On a motion to dismiss for failure to state a cause of action, the complaint’s allegations receive every favorable inference and can adequately state a claim for piercing the corporate veil.

Dannasch v. Bifulco · filed 1992-06-23(a)(7)

Finally, we find that the allegations of plaintiff’s complaint, when given every favorable inference (Rovello v Orofino Realty Co., 40 NY2d 633), adequately state a cause of action for piercing the corporate veil (see, Walkovszky v Carlton, 18 NY2d 414).

On a motion to dismiss for failure to state a cause of action, the court assumes the truth of the complaint’s material allegations and reasonable inferences and denies the motion if the allegations disclose any cognizable cause of action.

Campbell v. BIC Corp. · filed 1992-07-08(a)(7)

The standards followed in determining a CPLR 3211 (a) (7) motion are that the court must assume the truth of the complaint’s material allegations as well as whatever can be reasonably inferred therefrom and the motion should be denied if any cognizable cause of action can be discerned from the allegations of the complaint (McGill v Parker, 179 AD2d 98).

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

Bernstein v. 1995 Associates · filed 1992-07-09(a)(7)

1995 Associates moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (4) and (7). ... Accepting the plaintiffs’ allegations as true, we find that the Supreme Court erred in dismissing these causes of action.

On a motion to dismiss under CPLR 3211(a)(7), the court must assume the plaintiff’s alleged facts to be true.

Jaramillo v. Callen Realty · filed 1992-06-08(a)(7)

So plaintiff alleges, and so I must, on a motion to dismiss, assume such to have been the facts.

A complaint based on contractual notice should not be dismissed under CPLR 3211 when the notice is not patently defective.

Khalid v. Poses · filed 1992-06-09

In any event, the notice was not so patently defective as to support summary dismissal of the complaint.

Under CPLR 3211(a)(7), allegations that visible poles and wires gave a purchaser constructive notice of a claimed right-of-way can suffice to defeat a motion to dismiss.

Hudson Valley Cablevision Corp. v. 202 Developers, Inc. · filed 1992-08-24(a)(7)

Such allegations, if proven, are sufficient to establish that the defendant 202 had constructive notice of the plaintiff’s claimed right-of-way (see, Pallone v New York Tel. Co., 34 AD2d 1091, affd 30 NY2d 865; 487 Elmwood v Hassett, 83 AD2d 409, 412). Thus, the motion to dismiss should not have been granted with respect to the second cause of action (see, Rovello v Orofino Realty Co., 40 NY2d 633; Town of N. Hempstead v Sea Crest Constr. Corp., 119 AD2d 744, 746).

CPLR 3211(a)(7) permits dismissal of a cause of action that does not state a claim.

Rose Lee Mfg., Inc. v. Chemical Bank · filed 1992-10-05(a)(7)

Consequently, the third cause of action alleging that the defendant mistakenly credited Amerco’s account does not state a cause of action and must be dismissed.

A discrimination claim fails to state a cause of action when it alleges no facts connecting the termination to age or sexual discrimination.

McCoy v. Edison Price, Inc. · filed 1992-10-20(a)(7)

Finally, the IAS Court properly dismissed plaintiffs’ third cause of action for failure to state a cause of action since plaintiffs failed to allege any facts demonstrating that the termination of the parties’ business relationship was due to either age or sexual discrimination.

On a motion to dismiss for failure to state a cause of action, the court must read the complaint favorably to the plaintiff and accept its factual allegations as true.

Gruen v. County of Suffolk · filed 1992-11-16(a)(7)

It is well settled that, as a general rule, on a motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7), the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true (see, Grand Realty Co. v City of White Plains, 125 AD2d 639; Barrows v Rozansky, 111 AD2d 105; Holly v Pennysaver, 98 AD2d 570). ... With these principles in mind, we find that the Supreme Court should not have dismissed the first and second causes of action.

Under CPLR 3211(a)(7), a verified complaint that adequately alleges fraud and breach of fiduciary duty states causes of action sufficient to survive dismissal.

Kanev v. Turk · filed 1992-11-24(a)(7)

Order Supreme Court, New York County (Irma V. Santaella, J.), entered on or about February 13, 1991, which denied defendant-appellant’s motion to dismiss the complaint as against him pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs. The verified complaint adequately sets forth causes of action for fraud and breach of fiduciary duty.

A petition that adequately alleges a cause of action for fraud survives a motion to dismiss for pleading deficiencies.

Maggi v. Maggi · filed 1992-11-30(a)(7)

We find unpersuasive the appellant’s contention that the pleading deficiencies of the petition require its dismissal. The allegations set forth in the petition adequately established the existence of a cause of action to recover damages for fraud (see, Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698; Cowee v Cornell, 75 NY 91, 99-100; Matter of Paul, 105 AD2d 928; see also, Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187).

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

Warner v. Levinson · filed 1992-12-01(a)(7)

The pleadings dismissed by the court either failed to particularize the transactions and occurrences and the material elements of the causes of action (CPLR 3013), failed to state a valid cause of action (CPLR 3211 [a] [7]), or were covered by the general denials in defendants’ answer (Faroll v National Sur. Corp., 13 AD2d 952).

On a motion to dismiss for failure to state a cause of action, the court must treat every allegation as true and resolve all inferences in the plaintiff’s favor, regardless of whether the plaintiff will ultimately prevail.

344 E. 72 Ltd. Partnership v. Dragatt · filed 1992-12-08(a)(7)

It is axiomatic that on a motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]), 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 generally, Guggenheimer v Ginzburg, 43 NY2d 268, 275).

A breach-of-contract claim alleging that the defendant failed to complete contracted work can withstand a motion to dismiss under CPLR 3211.

Milton alters v. Pennon Associates, Ltd. · filed 1992-12-21

The allegations asserted in the first cause of action to recover damages for breach of contract are sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (see, Guggenheimer v Ginzburg, 43 NY2d 268, 274-275).

A third-party complaint with a sufficient pleading withstands a motion to dismiss under CPLR 3211(a)(7).

Rothbort v. S.L.S. Management Corp. · filed 1992-08-03(a)(7)

The third-party plaintiffs pleading is sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7).

Under CPLR 3211(a)(7), a court views the complaint’s allegations as a whole to decide whether they support the causes of action.

Weiss v. Weiss · filed 1992-09-28(a)(7)

However, it was error to dismiss those causes of action pursuant to CPLR 3211 (a) (7). Viewing the allegations as a whole, as we must where claims are attacked for legal insufficiency ... we conclude that the plaintiff has alleged facts which would support those three causes of action.

On a motion to dismiss for failure to state a cause of action, the court assumes the truth of the complaint’s material allegations and reasonable inferences.

Ackerman v. 305 East 40th Owners Corp. · filed 1993-01-19(a)(7)

Such a motion assumes the truth of the complaint’s material allegations and whatever can be reasonably inferred therefrom.

On a motion to dismiss under CPLR 3211(a)(7), the court liberally construes the complaint, accepts its factual allegations as true, and asks whether they fit a cognizable legal theory.

I. Shulman & Son, Inc. v. Jorling · filed 1993-01-21(a)(7)

It is well settled that on a motion to dismiss pursuant to CPLR 3211 (a) (7), this Court must "construe the complaint liberally in plaintiff’s favor, accept the facts alleged as true * * * and determine whether the facts alleged fit within any cognizable legal theory” ... Accordingly, defendant’s motion to dismiss was properly denied.

A sufficiently pleaded breach of contract claim withstands a motion to dismiss under CPLR 3211(a)(7).

Fidelity Business Brokers, Inc. v. Gamaldi · filed 1993-02-08(a)(7)

We further find that a cause of action sounding in breach of contract was sufficiently pleaded to withstand a motion to dismiss under CPLR 3211 (a) (7) (see, Siegel, NY Prac § 265 [2d ed]).

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

Oren v. Dowd · filed 1993-02-08(a)(7)

We find that the complaint, insofar as it is asserted against the appellants herein, fails to state any cause of action other than the one based on breach of contract (see, CPLR 3211 [a] [7]).

Under CPLR 3211(a)(7), a motion to dismiss must be denied when the complaint and opposing affidavit, taken as true, sufficiently state a cause of action.

Peck v. Chase Manhattan Bank, N.A. · filed 1993-02-09(a)(7)

Assuming the truth of the facts asserted in the complaint and the affidavit opposing dismissal (supra, at 275), we believe a cause of action for commercial bad faith was sufficiently stated to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7).

On a CPLR 3211 motion to dismiss for failure to state a cause of action, the court views the facts in the plaintiff’s favor.

Guarcello v. KLM Royal Dutch Airlines · filed 1993-03-04

Viewing the facts in the light most favorable to the plaintiff, as I must when deciding a motion to dismiss (Arrington v New York Times Co., 55 NY2d 433, cert denied 459 US 1146 [1982]), I must assume that plaintiff has satisfied the notice requirement; plaintiff may be entitled to recovery for breach of contract.

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

Wieder v. Skala · filed 1992-12-22(a)(7)

In the complaint, which must be accepted as true on a dismissal motion under CPLR 3211 (a) (7), plaintiff alleges that he was a commercial litigation attorney associated with defendant law firm from June 16, 1986 until March 18, 1988.

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

Miller v. Richman · filed 1992-12-30(a)(7)

In considering the motion addressed to the sufficiency of the complaint, we accept plaintiff’s allegations as true (see, Prudential-Bache Sec. v Citibank, 73 NY2d 263, 266; Silsdorf v Levine, 59 NY2d 8, 12, cert denied 464 US 831).

On a motion to dismiss for failure to state a cause of action, the court presumes the complaint's factual allegations to be true.

Helbig v. City of New York · filed 1993-03-30(a)(7)

The defendants do not concede the accuracy or veracity of these statements, but for purposes of this CPLR 3211 (a) (7) motion they shall be presumed to be true (Morone v Morone, 50 NY2d 481).

A motion under CPLR 3211(a)(7) fails when the complaint states a cause of action against the defendants.

Valloni v. Crisona · filed 1993-04-19(a)(7)

The defendants’ further claim that the complaint did not state a cause of action against them is also without merit (see, Bowles v Errico, 163 AD2d 771; Brown v Kimmel, 68 AD2d 896; County of Dutchess v Dutchess Sanitation Servs., 86 AD2d 884).

Section 3211(a)(7) does not permit dismissal when an unresolved factual issue prevents the court from determining a defendant’s liability as a matter of law.

Harrison v. Golden Tree Homes, Inc. · filed 1993-04-27(a)(7)

In this action by a contract vendee of real property to recover her downpayment it cannot be determined as a matter of law that defendants did not receive the monies in escrow until the status of the person who did receive the monies is resolved.

Section 3211(a)(7) permits a claim to proceed when the complaint sufficiently alleges a cause of action.

Sahn v. AFCO Industries · filed 1993-04-29(a)(7)

Accordingly, these two counts sufficiently allege a cause of action (see, Royal Ins. Co. v Cathy Daniels, Ltd., 684 F Supp 786, 792).

A motion to dismiss under CPLR 3211(a)(7) fails if the pleading’s factual allegations, taken together, state any legally cognizable cause of action.

Wiener v. Lenox Hill Hospital · filed 1993-05-04(a)(7)

This was sufficient to defeat defendants’ motion since, on 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 Ginzburg, 43 NY2d 268, 275; see, Foley v D’Agostino, 21 AD2d 60, 64-65).

On a CPLR 3211(a)(7) motion, the complaint’s allegations are read in the light most favorable to the plaintiff when deciding whether a claim is adequately pleaded.

Tomkins PLC v. Bangor Punta Consolidated Corp. · filed 1993-06-29(a)(7)

The complaint sets forth the interlocking relationship of the various defendants, and when that relationship and the other allegations in the complaint are read in the light most favorable to plaintiffs, plaintiffs have adequately alleged that the defendants-appellants authorized the various misrepresentations.

On a motion to dismiss for failure to state a cause of action, a complaint is construed liberally but must allege the material elements of the claim.

Giaimo v. Smith · filed 1993-07-06(a)(7)

While the plaintiffs’ pleading must be construed liberally (see, Rovello v Orofino Realty Co., 40 NY2d 633), as the dissenter properly observes, "and be deemed to allege whatever can reasonably be implied from its statements, it must still allege the material elements of the cause of action” (Kohler v Ford Motor Credit Co., 93 AD2d 205, 207; cf., Lewis v Village of Deposit, 40 AD2d 730, affd 33 NY2d 532; Didier v Macfadden Publs., 299 NY 49, 53).

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

Wessler v. Wessler · filed 1993-07-06(a)(7)

The allegations must be deemed to be true on a CPLR 3211 (a) (7) motion, and are legally sufficient in that they would, if established, constitute serious misconduct, not mere incompatibility, even taking into account the long duration of the parties’ marriage (see, Melnick v Melnick, 115 AD2d 416, 417; Grubman v Grubman, 156 AD2d 200).

On a motion to dismiss for failure to state a cause of action, the court asks whether the pleading states a claim, without requiring evidentiary support for it.

Parkway Mortgage, Inc. v. Azcuidiaz · filed 1993-07-06(a)(7)

It is well settled that the issue on a motion pursuant to CPLR 3211 (a) (7) is limited to ascertaining whether the pleading states any cause of action, and not whether there is evidentiary support for the complaint (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 634; LoPinto v J.W. Mays, Inc., 170 AD2d 582).

On a preanswer motion under CPLR 3211(a)(7), the court asks whether the pleading states a cause of action.

Natoli v. Sullivan · filed 1993-07-14(a)(7)

On a preanswer motion under CPLR 3211 (a) (7) the inquiry of the court is limited to whether the pleading states a cause of action.

Under CPLR 3211, allegations in a complaint may be amplified by affidavits when determining whether the pleadings withstand a motion to dismiss.

Leon v. Martinez · filed 1993-05-24

Whether or not the plaintiffs ultimately will prevail on this claim, the pleadings in the complaint, as amplified by the affidavits, are certainly sufficient to withstand a motion to dismiss.

On a motion to dismiss under CPLR 3211, the court must assume the facts alleged in the complaint are true.

Marcus v. Hemphill Harris Travel Corp. · filed 1993-05-25

However, it is axiomatic that in considering a motion to dismiss pursuant to CPLR 3211, the court must assume as true the facts alleged in the complaint (Kronos, Inc. v AVX Corp., 81 NY2d 90; Wieder v Skala, 80 NY2d 628).

On a motion testing the facial sufficiency of a complaint, its factual allegations must be treated as true.

Shea & Gould v. Miller · filed 1993-06-08(a)(7)

On a motion addressed to the facial sufficiency of the complaint, such an allegation must be deemed to be true (see, Cohn v Lionel Corp., 21 NY2d 559, 560).

A complaint alleging that an individual wrongfully detained chattels sufficiently states a cause of action against him personally despite his having signed relevant documents as a corporate president.

Spartan Built, Ltd. v. Modas Rest., Inc. · filed 1993-10-06(a)(7)

In light of the factual questions raised regarding Loudas’s involvement, the complaint sufficiently states a cause of action against him in his individual capacity.

Under CPLR 3211 (a) (7), allegations that contractual loans remain unpaid can state a claim for money due and owing sufficient to survive dismissal.

Le Bar Bat, Inc. v. Shallo · filed 1993-11-09(a)(7)

The allegations made by appellant, at least with respect to the loans made pursuant to agreement, state a cause of action against the corporations for money due and owing sufficient to withstand a motion under CPLR 3211 (a) (7).

CPLR 3211(a)(7) permits dismissal when a complaint consists of bare legal conclusions and factual claims that are inherently incredible or flatly contradicted by documentary evidence.

Lovisa Construction Co. v. Metropolitan Transportation Authority · filed 1993-11-15(a)(7)

A complaint is subject to dismissal pursuant to CPLR 3211 (a) (7) when the pleading is comprised of little more than bare legal conclusions and factual claims which are either inherently incredible or flatly contradicted by documentary evidence (see, Gertler v Goodgold, 66 NY2d 946, affg 107 AD2d 481; Lejkowski v Petrou, 178 AD2d 465; SRW Assocs. v Bell-port Beach Prop. Owners, 129 AD2d 328).

On a motion to dismiss under section 3211(a)(7), the court asks whether the pleading’s factual allegations, taken together, state any legally cognizable cause of action.

Doe v. Heath · filed 1993-11-19(a)(7)

In considering a motion to dismiss 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 Ginzburg, 43 NY2d 268, 275; see also, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506).

CPLR 3211 permits dismissal for failure to state a cause of action; a complaint survives when its allegations state one.

Dursi v. New York City Transit Authority · filed 1993-11-29(a)(7)

Therefore, since the complaint states a cause of action and there are questions of fact as to the plaintiff’s allegations, the court properly denied the Transit defendants’ motion (cf., Coppersmith v City of New York, 194 AD2d 586).

CPLR 3211(a)(7) permits dismissal of a broker’s commission claim when the complaint alleges no facts showing that the buyer and seller negotiated during the broker’s employment.

ERA Hamlet Realty, Inc. v. Meola · filed 1993-11-29(a)(7)

The Supreme Court properly granted the defendant’s motion to dismiss the complaint for failure to state a cause of action. ... The plaintiff’s pleadings fail to allege any facts to establish that the ultimate purchaser and the seller had entered into negotiations of sale during the term of the plaintiffs employment.

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

Bailey v. 800 Grand Concourse Owners, Inc. · filed 1993-12-02(a)(7)

Accepting the allegations of the complaint as true, as we must upon this CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action (see, e.g., Rovello v Orofino Realty Co., 40 NY2d 633; Foley v D’Agostino, 21 AD2d 60), it would appear that the defendant’s Board may well have imposed a sublet fee in excess of that permitted by its by-laws and, if it has, the defendant is answerable for those damages plaintiff can prove to have sustained as a result.

Under CPLR 3211(a)(7), a pleading survives dismissal if its factual allegations together disclose a cognizable cause of action, with damages reasonably inferable from those allegations.

Tenzer v. Ellenberg · filed 1993-12-07(a)(7)

Plaintiff’s motion to dismiss defendant’s counterclaim for legal malpractice pursuant to CPLR 3211 (a) (7) was properly denied since a motion to dismiss a pleading will fail, if, from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Under CPLR 3211(a)(7), allegations that defendants maliciously caused a reassignment to a job where the plaintiff was injured do not state a cause of action.

Ricks v. Amityville Union Free School District · filed 1994-01-18(a)(7)

The fourth cause of action should be dismissed against all defendants. In this part of her complaint, the plaintiff alleged that she was injured while working at a job to which she had been reassigned. She also alleged that her reassignment had been brought about by the defendants, who were acting with "a vicious and malicious purpose”. These allegations do not state a cause of action (CPLR 3211 [a] [7]).

Under CPLR 3211(a)(7), the court assumes the complaint’s allegations are true and asks whether it states a cause of action, rather than whether the plaintiff will ultimately prevail.

Reliance Insurance v. Associates · filed 1994-01-31(a)(7)

The defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. Thus, the narrow question presented for review is not whether the plaintiff will ultimately prevail in the litigation, but whether the complaint states a cause of action (see, Becker v Schwartz, 46 NY2d 401, 408). For the purposes of this review the allegations in the plaintiff’s complaint must be assumed to be true (see, Becker v Schwartz, supra, at 408).

Section 3211(a)(7) does not permit the court to use affidavits to test the evidentiary support for a complaint unless it converts the motion to one for summary judgment.

Hallman v. Horowitz · filed 1994-02-04(a)(7)

Unless a motion to dismiss for failure to state a cause of action is converted by the court to a motion for summary judgment, affidavits submitted in support of or in opposition to the motion are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.

On a motion to dismiss for failure to state a cause of action, the court treats allegations in the complaint and opposing affidavits as true and draws reasonable inferences in the plaintiff’s favor.

Fischer v. KPMG Peat Marwick · filed 1994-02-10(a)(7)

In deciding the Partnership’s motion to dismiss for facial insufficiency the court must consider the plaintiff’s allegations asserted, both in the complaint and in any accompanying affidavits submitted in opposition to the motion, as true and must resolve all inferences which reasonably flow therefrom in favor of the plaintiff (Joel v Weber, 166 AD2d 130, 135-136; see also, Sanders v Winship, 57 NY2d 391, 394).

On a motion to dismiss for failure to state a cause of action, pleaded facts receive favorable inferences, but bare legal conclusions and claims that are inherently incredible or contradicted by documentary evidence do not.

Abramovitz v. Paragon Sporting Goods Co. · filed 1994-03-03(a)(7)

"Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference * * * nevertheless, 'allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration.’ ”

Under CPLR 3211(a)(7), allegations considered with the rest of the complaint may be dismissed if they fail to state a cause of action.

Raphael v. Lakeland Central School District · filed 1994-03-21(a)(7)

The Supreme Court correctly held that these allegations, considered along with all the other allegations contained in the complaint, fail to state a cause of action (see, CPLR 3211 [a] [7]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the pleading in the plaintiff’s favor and asks whether it states any recognizable cause of action.

Andrews v. Bruk · filed 1994-03-25(a)(7)

To withstand an application to dismiss due to an alleged failure to state a cause of action, the test is whether, liberally construed in a light most favorable to plaintiff, the pleading states any recognizable cause of action (Shields v School of Law of Hofstra Univ., 77 AD2d 867; Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 AD2d 680; Pomerance v Pomerance, 301 NY 254). ... Defendant’s application pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs complaint, is therefore denied.

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

Doherty v. New York Telephone Co. · filed 1994-03-28(a)(7)

Contrary to the plaintiff’s contention, we find that the complaint failed to state a cause of action for which relief could be granted. Therefore, it was properly dismissed by the Supreme Court pursuant to CPLR 3211 (a) (7).

Under CPLR 3211(a)(7), a motion to dismiss cannot resolve a disputed question about whether the plaintiff is covered by a contract’s no-action provision.

Acacia National Life Insurance v. Kay Jewelers, Inc. · filed 1994-04-07(a)(7)

The Supreme Court properly rejected the defendants’ contention that the complaint must be dismissed for failure of the plaintiff to comply with the indenture’s no-action provision. ... As the Supreme Court found, whether this definition applies to the plaintiff, which sold its notes prior to bringing suit, cannot be resolved on a motion to dismiss (see, Hellenic Greek Orthodox Church v City of Schenectady, 81 AD2d 959).

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s allegations without deciding whether the plaintiff can ultimately prove them.

Knight v. Kirker · filed 1994-04-21(a)(7)

As a final matter, accepting all of the allegations without opinion as to plaintiff’s ability ultimately to establish their truth before the trier of fact (see, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506, 509), we conclude that the complaint states a cause of action (see, Morone v Morone, 50 NY2d 481; Donnell v Stogel, 161 AD2d 93).

On a motion to dismiss a pleading as facially deficient, the court treats its factual allegations as true when deciding whether the claim may proceed.

Hlavinka v. Slovak Sky Bungalow Colony · filed 1994-04-28

Because the motion is predicated solely upon the basis that the pleading is deficient on its face, even if all factual allegations of the third ... claim are conceded, that portion of the relief sought should have been denied (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:24, C3211:25, at 38-41).

On a motion to dismiss for failure to state a cause of action, the court assumes the complaint’s material allegations and reasonable inferences are true and denies dismissal if they state a cognizable claim.

Caryl S. v. Child & Adolescent Treatment Services, Inc. · filed 1994-05-10(a)(7)

Such a motion assumes the truth of the complaint’s material allegations and whatever can be reasonably inferred therefrom. ... Applying these rules to the instant complaint, I find that there is no basis for dismissal.

Under CPLR 3211(a)(7), a defamation complaint survives a motion to dismiss when its allegations sufficiently state a cause of action.

Rejent v. Liberation Publications, Inc. · filed 1994-05-12(a)(7)

This appeal, from the denial of a motion to dismiss a cause of action for defamation as legally insufficient (CPLR 3211 [a] [7]), presents the issue of whether an advertisement featuring a picture of plaintiff, a professional male model, is, as he contends, reasonably susceptible of the defamatory connotation that he is "sexually lustful, promiscuous and immoral” and, if it is, whether it is defamatory per se. ... The allegations of the complaint are, in our view, sufficient to state a cause of action for defamation based on the publication of plaintiff’s picture in a sexually suggestive manner allegedly falsely implying that he is sexually lustful and promiscuous, that he advertises erotic photographs and that he endorses and subscribes to the sexual attitudes and views expressed in Liberation’s publications.

On a motion to dismiss for failure to state a cause of action, the complaint must be construed liberally and in the light most favorable to the plaintiff.

Chambarry v. Mount Sinai Hospital · filed 1994-05-16(a)(7)

This is particularly true to the extent that defendant moves pursuant to CPLR 3211 (a) (7). On such a motion the complaint must be liberally construed, and in the light most favorable to the plaintiff (see, Rovello v Orofino Realty Co., 40 NY2d 633 [1976]). The motion to dismiss the first and third causes of action for failure to state a cause of action is denied.

On a motion to dismiss for failure to state a cause of action, pleaded facts receive favorable inferences, but bare legal conclusions and claims that are inherently incredible or flatly contradicted by documents do not.

Fisher v. Maxwell Communications Corp. · filed 1994-06-14(a)(7)

"Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference * * * nevertheless, 'allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration.’ ”

Section 3211(a)(7) permits dismissal of claims that fail to state a cause of action.

Glendora v. Gallicano · filed 1994-07-18(a)(7)

In addition, we find that the complaint fails to state any cause of action other than the one based on breach of contract against the defendant landlords (see, CPLR 3211 [a] [7]).

Section 3211(a)(7) requires a court considering a motion to dismiss to construe the complaint liberally, accept its allegations as true, and draw favorable inferences for the plaintiff.

Fort Ann Central School District v. Hogan · filed 1994-07-21(a)(7)

Generally, in a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must construe the complaint liberally in favor of the plaintiff, accepting the facts alleged as true and determining whether they fit into any cognizable legal theory, with the pleader being entitled to every favorable inference that may be drawn (see, Quail Ridge Assocs. v Chemical Bank, 162 AD2d 917, appeal dismissed 76 NY2d 936; Kermisch v Avis Rent A Car Sys., 71 AD2d 790).

On a motion to dismiss for failure to state a cause of action, unsupported legal conclusions in a complaint receive no favorable inference.

State v. Fermenta ASC Corp. · filed 1994-07-28(a)(7)

The requisite elements of intent or recklessness are set forth as "bare legal conclusion[s] in the complaint” and are unsupported by any factual allegations and they are "therefore * * * not entitled to the usual favorable inferences accorded on a motion to dismiss” (Gold Mech. Contrs. v Lloyds Bank P.L.C., 197 AD2d 384 [1st Dept 1993]; see also, WFB Telecommunications v NYNEX Corp., 188 AD2d 257 [1st Dept 1992]; Vella v United Cerebral Palsy, 141 Misc 2d 976 [Sup Ct, NY County 1988]).

On a motion to dismiss for failure to state a cause of action, the court does not determine facts or assess the likelihood of success on the merits.

Detmer v. Acampora · filed 1994-08-22(a)(7)

The Supreme Court properly denied the branch of the defendants’ motion which was to dismiss the plaintiffs’ first four causes of action on the ground that they fail to state a cause of action (see, CPLR 3211 [a] [7]). ... Since the court is not concerned with determinations of fact or the likelihood of success on the merits (see, Stukuls v State of New York, 42 NY2d 272, 275; Grand Realty Co. v City of White Plains, 125 AD2d 639), the Supreme Court properly denied the defendants’ motion to dismiss those causes of action.

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

Ullmann v. Norma Kamali, Inc. · filed 1994-09-15(a)(7)

Although on a motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference, where as here, the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration (Mark Hampton, Inc. v Bergreen, 173 AD2d 220, lv denied 80 NY2d 788, citing, inter alia, Roberts v Pollack, 92 AD2d 440, 444).

CPLR 3211(a)(7) did not warrant dismissal of the pleaded fraudulent-inducement and undue-influence causes of action.

Weinstein v. Pollack · filed 1994-10-11(a)(7)

In addition, neither the first nor the seventh causes of action warrant dismissal pursuant to CPLR 3211 (a) (7) (see, Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407-408; Austin Travel Group v Karson, 142 AD2d 539; cf., Country-Wide Leasing Corp. v Subaru of Am., 133 AD2d 735).

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

S.A.F. LaSala Corp. v. Levy & Tolman · filed 1994-12-05(a)(7)

The various claims asserted by the plaintiff failed to state cognizable causes of action (see, CPLR 3211 [a] [7]), were brought prematurely, or failed to allege any damages resulting from the defendants’ allegedly tortious conduct (see, Lauer v Rapp, 190 AD2d 778).

On a CPLR 3211 pleading motion, a complaint stating a cause of action should not be dismissed unless its essential facts are negated beyond substantial question.

Metz v. Coopers & Lybrand · filed 1994-12-08

Considering the limited purpose for which affidavits may be used in a CPLR 3211 motion to dismiss (see, Rovello v Orofino Realty Co., 40 NY2d 633, 635-636), and giving the plaintiff the benefit of every possible favorable inference (see, supra, at 634), a complaint which states a cause of action should not be dismissed on a pleading motion unless the essential facts have been negated beyond substantial question so it can be ruled that the plaintiff does not have a cause of action (see, 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 when assessing whether they state a claim.

Butler v. Ratner · filed 1994-12-08(a)(7)

Even accepting, as we must, the truth of each of plaintiff’s allegations (see, Sanders v Winship, 57 NY2d 391, 394), the complaint does not state a cause of action for abuse of process because the process was both issued (see, Parkin v Cornell Univ., 78 NY2d 523, 530-531) and used (see, Curiano v Suozzi, 63 NY2d 113, 117; Dean v Kochendorfer, 237 NY 384, 390) for its intended purpose, i.e., to restrain plaintiff’s commission of the family offenses alleged in the petition pending a resolution on the merits.

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

Henning v. Rando Machine Corp. · filed 1994-12-23(a)(7)

On a motion to dismiss for failure to state a cause of action, the allegations in a complaint are deemed to be true and are given the benefit of every possible favorable inference (Rovello v Orofino Realty Co., 40 NY2d 633, 634).