Friday, November 2, 2012

Motion to dismiss for failure to state a cause of action.

Practice point: On the motion, pursuant to CPLR 3211(a)(7), the court must construe the pleading liberally, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: The motion should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it.

Case: Cusso v. Chabau Café Corp., NY Slip Op 07084 (2d Dept. 2012).

Monday’s issue: Malpractice as opposed to negligence.