Motion to dismiss based on a failure to state a cause of action.

Practice point:  In reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

Case: Rozell v. Milby, NY Slip Op 06133 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration awards.