Monday, July 21, 2014

A motion to dismiss pursuant to 3211(a)(7).

Practice point:  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. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

If the movant relies on evidence beyond the four corners of the complaint, the motion must be denied absent a showing that there is a material fact as claimed by the pleader is not a fact at all,l and unless there is no significant dispute regarding it.

Student note:  On the motion, the statutory standard is whether the plaintiff has pled a cause of action. Period.

Case:  J. A. Lee Elec., Inc. v City of New York, NY Slip Op 05159 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Sua sponte dismissal undone.