Practice point: On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must
liberally construe the complaint, accept all facts as alleged in the
pleading to be true, accord the plaintiff the benefit of every favorable
inference, and determine only whether the facts as alleged fit within
any cognizable legal theory. However, bare legal conclusions and factual claims which
are flatly contradicted by the record are not presumed to be true.
Student note: Where evidentiary material is submitted and considered
on the motion, the
question 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 claimed by the plaintiff to be one is not a fact at
all, and unless it can be said that no significant dispute exists
regarding it, the motion will not be granted.
Case: Gersher v. Ejamal, NY Slip Op 07447 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Applicability of the emergency doctrine.
