Photo: Andrey Popov via Adobe Stock Use of Evidence in a Motion Under CPLR 3211(a)(7): A Refresher Course
An examination of relevant case law regarding these rules suggests that CPLR 3211(a)(7) may actually provide a more flexible vehicle for the use of evidence than CPLR 3211(a)(1).
November 05, 2021 at 02:10 PM
8 minute read
Civil Procedure
The rules are familiar to litigators: On a pre-answer motion to dismiss a claim pursuant to CPLR 3211(a)(7) (which permits dismissal where "the pleading fails to state a cause of action"), the factual allegations in the complaint are treated as true and all reasonable inferences are drawn in the plaintiff's favor. A defendant who moves to dismiss under CPLR 3211(a)(7) generally argues that those allegations provide no legal basis for relief. One who wishes to present evidence on a pre-answer motion usually proceeds instead under CPLR 3211(a)(1), which permits dismissal where "a defense is founded upon documentary evidence." But an examination of relevant case law regarding these rules suggests that CPLR 3211(a)(7) may actually provide a more flexible vehicle for the use of evidence than CPLR 3211(a)(1).
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