Summary
affirming denial of CPLR 3211 motion based upon the existence of factual issues
Summary of this case from Bitsight Techs., Inc. v. Securityscorecard, Inc.Opinion
June 3, 1997
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
On a CPLR 3211 (a) (7) motion, the court should accept each of the factual allegations of the complaint as true, sustain the pleading when a cause of action may be discerned, even if inartfully stated, and make no effort to evaluate the ultimate merits of the case ( see, McGill v. Parker, 179 A.D.2d 98, 105). A motion to dismiss a complaint can be granted pursuant to CPLR 3211 (a)(1) only if the movant presents documentary evidence that will "definitively dispose of the claim" ( Demas v 325 W. End Ave. Corp., 127 A.D.2d 476, 477). We agree with the motion court that dispositive relief in favor of defendants would be inappropriate at this stage. The defenses pressed on the motion raise factual issues ( see, e.g., National States Elec. Corp. v City of New York, 225 A.D.2d 745, 748; Castagna Son v. Board of Educ., 173 A.D.2d 405) that cannot be resolved on the pleadings or on the documentary evidence presented by defendants. We have considered defendants' remaining arguments and find that they do not warrant dismissal of the complaint at this juncture.
Concur — Sullivan, J.P., Milonas, Wallach, Tom and Mazzarelli, JJ.