Wednesday, September 23, 2015

Motions to dismiss for failure to state a claim.

Practice point:  On the CPLR 3211(a)(7) motion, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.  Where evidentiary material is submitted and considered, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as 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 claim will not be dismissed.

Student note:  The court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects, pursuant to CPLR 3211[c].

Case:  Barouh v. Law Offs. of Jason L. Abelove, NY Slip Op 06769 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Charging a jury on comparative fault.