Practice point: Under CPLR 3211(a)(1), a dismissal is warranted only if the submitted documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.
Practitioners should note that, pursuant to CPLR 3211(a)(7), a court may freely consider plaintiff’s affidavits to remedy any defects in the complaint. The criterion is whether there actually is a cause of action, not whether one has been stated.
Case: Amaro v. Gani Realty Corp., NY Slip Op 01852 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Medical malpractice.
