Monday, January 4, 2016

Evidentiary material and motions to dismiss.

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.