Where evidentiary material is submitted and considered on a motion to dismiss for failure to state a claim, 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 absent a showing that a material fact as claimed by the plaintiff is not a fact, and unless the purported fact is undisputed.
Halo v. Schmidt, NY Slip Op 06609 (2d Dep't November 24, 2021)
