Practice point: The Appellate Division determined that the motion court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211(a)(7) motion to dismiss the complaint. The Appellate Division noted that defendant's submissions regarding "special employment" did not negate the elements of plaintiff's complaint, which asserts common law negligence. In fact, in their opposition, plaintiffs argued that since they had not yet had discovery, a motion for summary judgment was premature, and they asked the motion court decline to treat defendant's motion as a motion for summary judgment.
Student note: CPLR 3211(a)(7) limits the court to an examination of the pleadings
to determine whether they state a cause of action.
Case: Lee v. Dow Jones & Co., Inc., NY Slip Op 07247 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Vacating a default in a matrimonial action.
