A motion to dismiss on the ground that the action is barred by documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thus conclusively establishing a defense as a matter of law. On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.
Gold v. 22 St. Felix, LLC, NY Slip Op 04194 (2d Dep't August 9, 2023)
