Practice point: On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, give plaintiff the benefit of every possible favorable inference, and determine only whether the allegations fit within any cognizable legal theory.
Practitioners should note that while affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, affidavits are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims.
Case: Mathurin v. Lost & Found Recovery, LLC, NY Slip Op 06240 (2d Dept. 2009)
The opinion is here.
Tuesday’s issue: Motion practice.
