Practice point: On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), 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. While the court is may consider evidentiary material submitted by a defendant in support of the motion to dismiss, unless the motion is converted to one for summary judgment, the standard is whether the plaintiff has a cause of action, not whether he has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless there is no significant dispute exists regarding it, the motion will be denied. A motion to dismiss pursuant to CPLR 3211(a)(1) may properly be granted only where there is documentary evidence that utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.
Case: Anzora v. 81 Saxon Ave. Corp., NY Slip Op 00281 (2d Dep't January 18, 2017)
Here is the decision.
Tomorrow's issue: A premature summary judgment motion.