On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), 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. Where evidentiary material is submitted and considered on the 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. Pursuant to CPLR 3211(a)(1), the motion will be denied unless documentary evidence conclusively establishes, as a matter of law, a defense to the asserted claims.
68 16th Realty, LLC v. Bank of N.Y., NY Slip Op 00278 (2d Dep't January 20, 2021)
