Practice point: Where evidentiary material is submitted and considered on a 3211(a)(7) motion, and the motion is not converted into
one for summary judgment, the question is whether the plaintiff
has a cause of action, not whether the plaintiff has stated one. The motion will be denied unless it is demonstrated that what the plaintiff claims is a fact is not a fact at all, and unless there is no
significant dispute regarding it.
In deciding the motion, the court must accept the facts alleged in the
complaint as true, accord the plaintiff the benefit of every possible
favorable inference, and determine only whether the facts as alleged fit
within any cognizable legal theory.
Student note: A dismissal for lack of standing is not a dismissal on the merits for res judicata purposes, and neither is the striking of a complaint for noncomplance with a discovery order.
Case: Caliguri v. JPMorgan Chase Bank, N.A., NY Slip Op 073129 (2d Dept. 2014)
Here is the decision.
Wednesday's issue: Motion to vacate based on newly-discovered evidence.
