Opinion
2002-03518.
Argued March 18, 2003.
April 7, 2003.
In an action, inter alia, to recover damages for battery, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered March 4, 2002, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.
Vaneria Sesti, LLP, New York, N.Y. (Robert A. Sesti and Aubrey E. Riccardi of counsel), for appellants.
William H. Englander, P.C., Garden City, N.Y., and Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Laurel R. Kretzing of counsel), for respondents. (one brief filed)
Before: MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, HOWARD MILLER, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint for failure to state a cause of action. Bare legal conclusions and factual allegations which are contradicted by the record are not presumed to be true on a motion made pursuant to CPLR 3211(a)(7). Further, where evidentiary material is offered, the Supreme Court must determine whether the plaintiff has a cause of action, not merely whether one has been stated (see Kantrowitz Goldhamer v. Geller, 265 A.D.2d 529; Doria v. Masucci, 230 A.D.2d 764). Contrary to the plaintiffs' contention, the Supreme Court did not treat the defendants' motion as one for summary judgment. The Supreme Court applied the proper standard and correctly concluded that the complaint did not state any cognizable cause of action.
ALTMAN, J.P., FEUERSTEIN, H. MILLER and TOWNES, JJ., concur.