On a motion to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and the motion is not converted into one for summary judgment, the question becomes 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 to be one is not a fact and unless it can be said that no there is no significant dispute regarding it, the motion should be denied. If the motion is based on documentary evidence, pursuant to CPLR 3211(a)(1), it may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.
Alleyne v. Rutland Dev. Group, Inc., NY Slip Op 00975 (2d Dep't February 22, 2023
