Where evidentiary material is submitted and considered on the motion to dismiss the complaint 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 is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that there is no significant dispute regarding it, the motion should be denied.
Williston v. Jack Resnick & Sons, Inc., NY Slip Op 08247 (2d Dep't November 13, 2019)
Here is the decision.
