On November 12, 2015, the Second Department issued a decision in Shofel v. DaGrossa, 2015 NY Slip Op. 08156, denying a motion to dismiss after considering evidence submitted by the defendant, explaining:
A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7). Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties. Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate. Here, [the defendant’s] evidentiary submissions did not show that a material fact as claimed by the plaintiff to be one is not a fact at all and that no significant dispute exists regarding it.
(Internal quotations and citations omitted) (emphasis added).