Dismissal for failure to state a cause of action.

Practice point: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint, pursuant to CPLR 3211[c].

Student note: When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact as offered by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it, the motion should be denied.

Case: Jannetti v. Whelan, NY Slip Op 05726 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Evidence.