Monday, June 2, 2014

CPLR 3211(a)(7).

Practice point:  A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint and, upon considering such affidavits, the facts alleged therein must also be assumed to be true. . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Karimov v. Brown Harris Stevens Residential Mgt., LLC, NY Slip Op 03659 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a Labor Law § 240(1) claim.