Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes, as a matter of law, a defense to the asserted claims. In assessing a motion under CPLR 3211(a)(7), however, the court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and the standard is whether the pleading's proponent has a cause of action, not whether he has stated one. Where the plaintiff elects to stand on its pleading, the plaintiff may not be penalized because it has not made an evidentiary showing in support of the complaint.
106 N. Broadway v. Lawrence, NY Slip Op 07151 (2d Dep't December 2, 2020)
