Compelling drama often accompanies the motion for summary judgment. Lawyers burn the midnight oil, assemble affidavits, and conduct extensive research before assembling the papers. The collection is then cite-checked and spell-checked before being deposited in a mailbox at 11:59 p.m. Finally, prayers are offered in the hopes that a summary judgment time frame, lurking in some remote corner of New York’s menagerie of deadlines, has not been blown. Even if the movant’s position is compelling on the merits, New York’s civil procedure machinery can snatch a denial of the motion from the jaws of victory. See Siegel, New York Practice §279 (Connors ed., January 2015 Supplement).
Lately, however, we have witnessed confusion and resulting havoc when a motion to dismiss is made at the outset of an action. When a defendant makes a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, what must the plaintiff include in her response to defeat the motion? Are evidentiary affidavits required to support the allegations of the complaint, or is it sufficient to simply rely on the detailed contents of the pleading?
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