Friday, April 5, 2013

Motions to dismiss.

Practice point: A motion to dismiss, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note: When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations is not part of the calculus.

Case: Faith Assembly v. Titledge of N.Y. Abstract, LLC, NY Slip Op 02046 (2d Dept. 2013).

Here is the decision.

Monday's issue: Defaults and damages.