Tuesday, April 29, 2014

A motion to dismiss for failure to state a cause of action.

Practice point:  The motion was denied because, among other things, the complaint's allegations which assert a claim for damages as a result of the defendants' alleged breach of an agreement to pay an earned commission clearly fit within a cognizable legal theory. In addition, the question of whether the plaintiff will ultimately establish its entitlement to an earned commission is not a proper consideration in determining the motion.

Student note:  On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Atlantic Capital Realty v. Cayuga Capital Mgt., LLC, NY 02733 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An attorney sues for fees, claiming breach of contract and unjust enrichment.