Practice point: A motion to dismiss, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes plaintiff's
factual allegations, conclusively establishing a defense as a matter of
law.
Student note: When a party moves to dismiss a complaint pursuant to CPLR
3211(a)(7), the standard is whether the pleading states a cause of
action, not whether the proponent of the pleading has a cause of
action. In considering the motion, the court must 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. Whether a plaintiff can ultimately establish its allegations is not part of the calculus.
Case: Faith Assembly v. Titledge of N.Y. Abstract, LLC, NY Slip Op 02046 (2d Dept. 2013).
Here is the decision.
Monday's issue: Defaults and damages.
