Practice point: Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), 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. Unless it has been shown that a material fact claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.
Student note: Affidavits submitted in support of the motion may not be examined for the purpose of determining whether there is evidentiary support of the pleading.
Case: Anglero v. Hanif, NY Slip Op 04683 (2d Dep't June 15, 2016)
Here is the decision.
Tomorrow's issue: Obtaining a preliminary injunction.
