Practice point: When evidentiary proof is offered on a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the issue is whether plaintiff has a cause of action, not whether the pleading states one.
Students should note that, otherwise, the court must accept the pleaded facts as true, accord plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit any cognizable legal theory.
Case: Holster v. Cohen, NY Slip Op 00187 (2d Dept. 2011)
Here is the decision.
Monday’s issue: Torts.
