Practice point: On a 3211 motion to dismiss for failure to state a cause of action, the court must accept the alleged facts as true, give plaintiff the benefit of every inference, and determine only whether the allegations fit any cognizable legal theory.
Practitioners should note that allegations which are flatly contradicted by the record are not presumed to be true and, if documentary evidence disproves an essential allegation, dismissal is warranted.
Case: Deutsche Bank Natl. Trust Co. v. Sinclair, NY Slip Op 09419 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
