Practice point: Pursuant to CPLR 3211(a)(7), a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss. However, the burden never shifts to the nonmovant to rebut a defense asserted by the movant. A plaintiff will not be penalized for not having made an evidentiary showing in support of the complaint.
Student note: When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will be denied.
Case: E & D Group, LLC v. Vialet, NY Slip Op 09400 (2d Dep't 2015)
Here is the decision.
Tomorrow's issue: Handrails and interior stairs.