Practice point: Where evidentiary material is submitted and considered on a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must determine whether plaintiff has a cause of action, not whether plaintiff has stated one.
Practitioners should note that the motion should be denied unless it has been shown that a material fact as claimed by plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it.
Case: Shapiro v. Jackel, NY Slip Op 06171 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Trusts and Estates.
