2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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On a motion to dismiss a complaint for failure to state a claim pursuant to CPLR 3211 (a)
(7), the "facts pleaded in the complaint must be taken as true and are accorded every favorable
inference ... . However, allegations consisting of bare legal conclusions as well as factual claims
flatly contradicted by documentary evidence are not entitled to any such consideration ... ."
Maas v Cornell Univ., 94 NY2d 87, 91 (1999) (internal quotation marks and citation
omitted); Wilson v Hochberg, 245 AD2d 116, 116 (1st Dept 1997); Gertler v
Goodgold, 107 AD2d 481, 485 (1st Dept 1985), affd 66 NY2d 946 (1985). A claim
is inadequately pleaded if the complaint lacks adequate factual averments. Stormes v United Water NY, Inc., 84
AD3d 1352, 1353-1354 (2d Dept 2011).

When a party moves pursuant to CPLR 3211 (a) (7), the court is "limit[ed] ... to an
examination of the pleadings to determine whether they state a cause of action," even when the
movant has submitted affidavits to support its defense. See Miglino v Bally Total Fitness of Greater NY, Inc., 20 NY3d
342, 345, 351 (2013). The plaintiff is not required in that circumstance "to come forward
with claim-sustaining proof," except where the court decides to treat the motion as one for
summary judgment, and so informs the parties. Id.; see also Nonnon v City of New York, 9 NY3d 825, 827 (2007).
Affidavits submitted by the movant will rarely warrant dismissal, except where they conclusively
demonstrate that the plaintiff "has no [claim or] cause of action." Lawrence v Graubard Miller, 11 NY3d
588, 595 (2008) (internal quotation marks and citation omitted).

If evidence is adduced in support of a CPLR 3211 (a) (7) motion, the court is required to