Commercial Division Blog

Posted: June 7, 2018 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Court Rejects 3211(a)(7) Motion That Relied on Documentary Evidence

On May 25, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Telx-New York LLC v. 60 Hudson Owner LLC, 2018 NY Slip Op. 31037(U), denying a 3211(a)(7) motion that relied on documentary evidence, explaining:

On a motion to dismiss a plaintiff's claim pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court is not called upon to determine the truth of the allegations. Rather, the court is required to afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. The court's role is limited to determining whether the pleading states a cause of action, not whether there is evidentiary support to establish a meritorious cause of action.

Defendant moves to dismiss plaintiff's breach of contract claim pursuant to 3211(a)(7) for failure to state a cause of action, but with the inclusion of evidence extrinsic to the complaint, it has made the question whether the petitioner indeed has a cause of action, not simply whether he or she has stated one in the complaint. This is effectively a pre-joinder motion for summary judgment and is improper. As Professor David Siegel states, the utility of the CPLR 3211(a)(7) motion was unfortunately reduced by the Court of Appeals decision in Rovello v Orofino Realty Co. Rovello held that as long as the complaint states a claim on its face, the plaintiff need not -- in response to the defendant's paragraph 7 objection -- come forward with affidavits or other proof unless the court does in fact elect to treat the motion as one for summary judgment. This has resulted in holdings that the court cannot even consider the defendant's affidavits on a CPLR 3211(a)(7) motion unless and until it has elected to exercise its treat-as-sun11nary-judgment power.

It appears that many courts handle this type of motion by converting it to a motion for summary judgment and allowing additional briefing.

(Internal quotations and citations omitted).

This decision relates to the New York procedural rules allowing a claim to be dismissed if it (1) does not state a claim on its face (3211(a)(7)) or (2) is refuted by documentary evidence (3211(a)(1)). As this decision notes, there can be a problem if you confuse the two rules. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding whether a claim against you can be refuted at the pleadings stage by documentary evidence.