Motions to dismiss a complaint under CPLR 3211(a)(7)—the failure to state a cause of action statute—are common.1 A court can grant an (a)(7) motion to dismiss if the plaintiff failed to state, i.e., plead, a valid cause of action—if the complaint is missing an allegation necessary to support a cognizable cause of action or the purported cause of action is not recognized under New York law. That's the common law demurrer. But can a defendant use evidence on an (a)(7) motion to challenge a properly pleaded cause of action and obtain dismissal of the cause of action based on that evidence? Up until recently, the answer to that question was "yes."
Enter Miglino v. Bally Total Fitness of Greater N.Y. (20 NY3d 342 [Feb. 7, 2013]), a recent decision by the Court of Appeals in which the court suggested that an (a)(7) motion can be used only to test the sufficiency of a pleading. Did the court intend to overrule the principle that dismissal on an (a)(7) motion is appropriate where evidence submitted by a defendant refutes a properly pleaded cause of action? This article will explore that issue.
CPLR 3211(a)(7)
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