Affidavits submitted with a motion to dismiss are generally intended to remedy pleading defects rather than to offer evidentiary support for properly pleaded claims.
Plaintiffs brought consolidated lawsuits alleging that the City's negligent maintenance of a landfill caused various illnesses. The City moved to dismiss the complaints for failure to state a cause of action, supported by expert affidavits regarding causation. The court considers whether such affidavits can support a motion to dismiss under CPLR 3211. Because the City's motion was not converted to a motion for summary judgment, the plaintiffs were not on notice of an obligation to produce a complete evidentiary record. While affidavits may be considered on a motion to dismiss, they are generally intended to remedy pleading defects rather than provide evidentiary support for properly pleaded claims. The court affirms the dismissal of one claim on statute of limitations grounds but denies the motion to dismiss the remaining complaints.
9 N.Y.3d at 827 Determining scope of motion to dismiss under CPLR 3211151 citing cases“were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered”
- Grauer v. Westhampton Beach Sch. Dist., 247 A.D.3d 730 (N.Y. App. Div. 2d Dep't 2026).published"In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inferen…
- NYC REQ Inc. v. Tweely Tubs LLC, 2025 NY Slip Op 51787(U) (N.Y. Sup. Kings 2025).unpublished "However, when dismissal is sought for failure to state a cause of action, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether…
- Makransky v. Makransky, 242 A.D.3d 977 (N.Y. App. Div. 2d Dep't 2025).published "While affidavits may be considered, . . . they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims" ( Nonnon v City of New York , 9 NY3d 825, 827).
- Lara v. Tutor Perini Corp., 2025 NY Slip Op 30046(U) (N.Y. Sup. Ct., New York Cty. 2025).unpublished(refusing to convert motion where plaintiffs suggest that "they have not had the opportunity to submit all of their evidence relevant to a determination of causation)
- Roberson v. New York City Health & Hosp. Corp., 2024 NY Slip Op 34251(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublished“On a CPLR 3211 motion to dismiss, the court will ‘accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cog…
- Leon-Burgos v. New York City Tr. Auth., 2024 NY Slip Op 33584(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublishedHowever, on a motion to dismiss pursuant to CPLR 3211 (a) (7), "[w]hile affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects a…
- Minor v. Essence Ventures, LLC, 2024 NY Slip Op 50758(U) (N.Y. Sup. Kings 2024).unpublished The court must accept the complaint's allegations as true, afford them a liberal construction, and draw all reasonable inferences in plaintiff's favor and "determine only whether the facts as alleged fit within any cognizable legal theory.…
- Kinnear v. Cefoli, 184 A.D.3d 628 (N.Y. App. Div. 2d Dep't 2020).published"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord [the plaintiff] the benefit of every possible favorable inference, and [*2]determine only whether the facts as alleged fit withi…
- Portville Truck & Auto Repair, Inc. v. Mack Trucks, Inc., No. 1:19-cv-01045 (W.D.N.Y. Jan. 27, 2020).(On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as allege…)
- Kaplan v. Conway & Conway, 173 A.D.3d 452 (N.Y. App. Div. 1st Dep't 2019).publishedAs a result of defendants' alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and "reputational damage." Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to alleg…
Show 115 more citing cases
- Ferrera v. City of New York, 2018 NY Slip Op 5824 (N.Y. App. Div. 2d Dep't 2018).publishedIn considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must " accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the fact…
- Matter of Kevin B. v. Zovania B., 2018 NY Slip Op 1242 (N.Y. App. Div. 1st Dep't 2018).publishedHowever, under the circumstances, the court did not adequately give notice to the parties that it was treating the motion to dismiss as one for summary judgment ( see Nonnon v City of New York , 9 NY3d 825, 827 [2007]).
- Saul v. Cahan, 153 A.D.3d 947 (N.Y. App. Div. 2d Dep't 2017).publishedIn considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must “ ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only w…
- Duverney v. City of New York, 57 Misc. 3d 537 (N.Y. Sup. Ct. 2017).publishedDiscussion “On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit wit…
- Morse v. Fidessa Corp., 57 Misc. 3d 653 (N.Y. Sup. Ct. 2017).publishedIt only prohibits discrimination based on whether someone is married, single, divorced, etc. Discussion “On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit o…
- XXXX, L.P. v. 363 Prospect Place, LLC, 153 A.D.3d 588 (N.Y. App. Div. 2d Dep't 2017).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the fac…
- Weinstein v. CohnReznick, LLP, 144 A.D.3d 1140 (N.Y. App. Div. 2d Dep't 2016).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), a court is required to accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only wheth…
- Kaplan v. New York City Dept. of Health & Mental Hygiene, 142 A.D.3d 1050 (N.Y. App. Div. 2d Dep't 2016).publishedAffording the complaint a liberal construction and accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every favorable inference (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leo…
- Manning v. Pioneer Sav. Bank, 56 Misc. 3d 790 (N.Y. Sup. Ct. 2016).publishedWhen considering a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable infe…
- Hutchison v. Kings Cnty. Hosp. Ctr., 139 A.D.3d 673 (N.Y. App. Div. 2d Dep't 2016).publishedIn considering that branch of the motion which was to dismiss pursuant to CPLR 3211 (a) (7), the court must “ ‘accept the facts as alleged in the complaint as true, accord plaintiff! ] the benefit of every possible favorable inference, and…
- Fedele v. Qualified Pers. Residence Trust of Doris Rosen Margett, 137 A.D.3d 965 (N.Y. App. Div. 2d Dep't 2016).publishedThe plaintiffs “were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered,” or given an opportunity to do so (Nonnon v City of New York, 9 NY3d 825, 827 [20…
- Wallkill Med. Dev., LLC v. Catskill Orange Orthopaedics, 131 A.D.3d 601 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only w…
- Blue Island Dev., LLC v. Town of Hempstead, 131 A.D.3d 497 (N.Y. App. Div. 2d Dep't 2015).publishedHere, according the complaint the benefit of every possible favorable inference and determining only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martine…
- Baines v. Daily News L.P., 51 Misc. 3d 229 (N.Y. Sup. Ct. 2015).publishedDismissal is warranted under CPLR 3211 (a) (7) only if the complaint fails to allege facts that fit within any cognizable legal theory (Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Goldman v Metropolitan Life Ins.
- Gfre, Inc. v. U.S. Bank, N.A., 130 A.D.3d 569 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the fac…
- J&E Indus. of Ossining, Inc. v. Peekskill Hous. Auth., 128 A.D.3d 638 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the fac…
- Everett v. Eastchester Police Dep't, 127 A.D.3d 1131 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every pos *1132 sible favorable inference, and determine only whet…
- Ackerman v. New York Hosp. Med. Ctr. of Queens, 127 A.D.3d 794 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only w…
- Kritzer v. Ventura Ins. Brokerage, Inc., 50 Misc. 3d 832 (N.Y. Sup. Ct. 2015).published(Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 437 [1st Dept 2014]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431,…
- Pinnacle Realty of New York, LLC v. 255 Butler, LLC, 125 A.D.3d 952 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the fac…
- Morris v. Chase Bank, 125 A.D.3d 731 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable infe…
- Hock v. Cohen, 125 A.D.3d 720 (N.Y. App. Div. 2d Dep't 2015).publishedOn a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026) and “ ‘accept the facts as alleged in the complaint as true…
- Webb v. Greater New York Auto. Dealers Ass'n, 123 A.D.3d 1111 (N.Y. App. Div. 2d Dep't 2014).publishedIn considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only w…
- Papa v. Fairfield on the Green, 123 A.D.3d 990 (N.Y. App. Div. 2d Dep't 2014).publishedAccepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as we must on a motion pursuant to CPLR 3211 (a) (7) (see Nonnon v City of New York, 9 NY3d 825, 827 [200…
- Siskin v. Cassar, 122 A.D.3d 714 (N.Y. App. Div. 2d Dep't 2014).publishedIn considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible fa…
- Marston v. Gen. Elec. Co., 121 A.D.3d 1457 (N.Y. App. Div. 3d Dep't 2014).published Moreover, plaintiff cannot be faulted for not coming forward with any evidence in opposition to the motion to dismiss inasmuch as it was never converted to a motion for summary judgment (see Miglino v Bally Total Fitness of Greater N.Y., I…
- MarstonvGeneralElectricCompany, No. 517694 (N.Y. App. Div. 3d Dep't Oct. 30, 2014).publishedMoreover, plaintiff cannot be faulted for not coming forward with -4- 517694 any evidence in opposition to the motion to dismiss inasmuch as it was never converted to a motion for summary judgment (see Miglino v Bally Total Fitness of Grea…
- Gould v. Decolator, 121 A.D.3d 845 (N.Y. App. Div. 2d Dep't 2014).publishedIn considering a motion to dismiss for failure to state a cause *847 of action pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable…
- Korsinsky v. Rose, 120 A.D.3d 1307 (N.Y. App. Div. 2d Dep't 2014).publishedOrdered that the order is affirmed insofar as appealed from, with costs. *1308 In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged…
- Friedland Realty, Inc. v. 416 W, LLC, 120 A.D.3d 1185 (N.Y. App. Div. 2d Dep't 2014).publishedOn a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff…
- Air & Power Transmission, Inc. v. Weingast, 120 A.D.3d 524 (N.Y. App. Div. 2d Dep't 2014).publishedAccepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, as required on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) (see Nonnon v City of New…
- J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652 (N.Y. App. Div. 2d Dep't 2014).publishedIn considering such a motion, “the court [must] ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cogn…
- Mariano v. Fiorvante, 118 A.D.3d 961 (N.Y. App. Div. 2d Dep't 2014).published The complaint asserts causes of action alleging fraud, breach of contract, conversion, negligence, and “elder abuse.” In the order appealed from, the Supreme Court granted the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the…
- Greenberg v. Blake, 117 A.D.3d 683 (N.Y. App. Div. 2d Dep't 2014).published In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable infe…
- Walton v. New York State Dep't of Corr. Servs., 921 N.E.2d 145 (N.Y. 2009).published
- Paolicelli v. Fieldbridge Assocs., LLC, 120 A.D.3d 643 (N.Y. App. Div. 2d Dep't 2014).published
- Behar v. Glickenhaus Westchester Dev., Inc., 122 A.D.3d 784 (N.Y. App. Div. 2d Dep't 2014).published
- Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 A.D.3d 784 (N.Y. App. Div. 2d Dep't 2015).published
- Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937 (N.Y. App. Div. 2d Dep't 2015).published
- Raach v. SLSJET Mgmt. Corp., 134 A.D.3d 792 (N.Y. App. Div. 2d Dep't 2015).published
- E & D Grp., LLC v. Vialet, 134 A.D.3d 981 (N.Y. App. Div. 2d Dep't 2015).published
- Vasomedical, Inc. v. Barron, 137 A.D.3d 778 (N.Y. App. Div. 2d Dep't 2016).published
- Skywest, Inc. v. Ground Handling, Inc., 150 A.D.3d 922 (N.Y. App. Div. 2d Dep't 2017).published
- Dhamoon v. 230 Park South Apts., Inc., 48 A.D.3d 103 (N.Y. App. Div. 1st Dep't 2007).published
- Paolino v. Paolino, 51 A.D.3d 886 (N.Y. App. Div. 2d Dep't 2008).published
- IMS Engineers-Architects, P.C. v. State, 51 A.D.3d 1355 (N.Y. App. Div. 3d Dep't 2008).published
- Ken Mar Dev., Inc. v. Dep't of Pub. Works, 53 A.D.3d 1020 (N.Y. App. Div. 3d Dep't 2008).published
- Walton v. New York State Dep't of Corr. Servs., 57 A.D.3d 1180 (N.Y. App. Div. 3d Dep't 2008).published
- Reid v. Gateway Sherman, Inc., 60 A.D.3d 836 (N.Y. App. Div. 2d Dep't 2009).published
- Alaimo v. Town of Fort Ann, 63 A.D.3d 1481 (N.Y. App. Div. 3d Dep't 2009).published
- Kunz v. New Netherlands Routes, Inc., 64 A.D.3d 956 (N.Y. App. Div. 3d Dep't 2009).published
- Union State Bank v. Weiss, 65 A.D.3d 584 (N.Y. App. Div. 2d Dep't 2009).published
- Mathurin v. Lost & Found Recovery, LLC, 65 A.D.3d 617 (N.Y. App. Div. 2d Dep't 2009).published
- Specialized Indus. Servs. Corp. v. Carter, 68 A.D.3d 750 (N.Y. App. Div. 2d Dep't 2009).published
- Morales v. AMS Mortg. Servs., Inc., 69 A.D.3d 691 (N.Y. App. Div. 2d Dep't 2010).published
- Moore v. Liberty Power Corp., 72 A.D.3d 660 (N.Y. App. Div. 2d Dep't 2010).published
- Russo v. Macchia-Schiavo, 72 A.D.3d 786 (N.Y. App. Div. 2d Dep't 2010).published
- Reiver v. Hirschberg Wexler & Hirschberg, LLP, 73 A.D.3d 1149 (N.Y. App. Div. 2d Dep't 2010).published
- Sokol v. Leader, 74 A.D.3d 1180 (N.Y. App. Div. 2d Dep't 2010).published
- Nicosia v. Bd. of Managers of the Weber House Condo., 77 A.D.3d 455 (N.Y. App. Div. 1st Dep't 2010).published
- Cohen v. Cohen-Fisher, 78 A.D.3d 640 (N.Y. App. Div. 2d Dep't 2010).published
- Gizara v. New York Times Co., 80 A.D.3d 1026 (N.Y. App. Div. 3d Dep't 2011).published
- S.J.J.K. Tennis, Inc. v. Confer Bethpage, LLC, 81 A.D.3d 630 (N.Y. App. Div. 2d Dep't 2011).published
- Baron v. Galasso, 83 A.D.3d 626 (N.Y. App. Div. 2d Dep't 2011).published
- Guayara v. Harry I. Katz, P.C., 83 A.D.3d 661 (N.Y. App. Div. 2d Dep't 2011).published
- Ford v. Fink, 84 A.D.3d 725 (N.Y. App. Div. 2d Dep't 2011).published
- Sanford/Kissena Owners Corp. v. Daral Props., 84 A.D.3d 1210 (N.Y. App. Div. 2d Dep't 2011).published
- Ascani v. EI Du Pont De Nemours & Co., 85 A.D.3d 830 (N.Y. App. Div. 2d Dep't 2011).published
- Bodden v. Kean, 86 A.D.3d 524 (N.Y. App. Div. 2d Dep't 2011).published
- James v. Bain, 86 A.D.3d 675 (N.Y. App. Div. 3d Dep't 2011).published
- Giunta's Meat Farms, Inc. v. Pina Constr. Corp., 89 A.D.3d 798 (N.Y. App. Div. 2d Dep't 2011).published
- Giunta's Meat Farms, Inc. v. Pina Constr. Corp., 89 A.D.3d 799 (N.Y. App. Div. 2d Dep't 2011).published
- Cnty. of Suffolk v. MHC Greenwood Vill., LLC, 91 A.D.3d 587 (N.Y. App. Div. 2d Dep't 2012).published
- Henderson v. Kingsbrook Jewish Med. Ctr., 91 A.D.3d 720 (N.Y. App. Div. 2d Dep't 2012).published
- Knutt v. Metro Int'l, S.A., 91 A.D.3d 915 (N.Y. App. Div. 2d Dep't 2012).published
- Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682 (N.Y. App. Div. 2d Dep't 2012).published
- Perez v. Lopez, 97 A.D.3d 558 (N.Y. App. Div. 2012).published
- Rozell v. Milby, 98 A.D.3d 960 (N.Y. App. Div. 2d Dep't 2012).published
- In re Baugher, 98 A.D.3d 1111 (N.Y. App. Div. 2d Dep't 2012).published
- Vill. of Woodbury v. Brach, 99 A.D.3d 697 (N.Y. App. Div. 2d Dep't 2012).published
- Baker v. Inamdar, 99 A.D.3d 742 (N.Y. App. Div. 2012).published
- Gould v. Rempel, 99 A.D.3d 759 (N.Y. App. Div. 2012).published
- Baumann v. Hanover Cmty. Bank, 100 A.D.3d 814 (N.Y. App. Div. 2d Dep't 2012).published
- G.L. v. Markowitz, 101 A.D.3d 821 (N.Y. App. Div. 2d Dep't 2012).published
- Guido v. Orange Reg'l Med. Ctr., 102 A.D.3d 828 (N.Y. App. Div. 2d Dep't 2013).published
- Woss, LLC v. 218 Eckford, LLC, 102 A.D.3d 860 (N.Y. App. Div. 2d Dep't 2013).published
- Pertoso v. Hanna, 103 A.D.3d 698 (N.Y. App. Div. 2d Dep't 2013).published
- Ortiz v. City of New York, 105 A.D.3d 674 (N.Y. App. Div. 1st Dep't 2013).published
- Torres v. Louzoun Enter., Inc., 105 A.D.3d 945 (N.Y. App. Div. 2d Dep't 2013).published
- Faith Assembly v. Titledge of New York Abstract, LLC, 106 A.D.3d 47 (N.Y. App. Div. 2d Dep't 2013).published
- Deblinger v. Sani-Pine Prods. Co., 107 A.D.3d 659 (N.Y. App. Div. 2d Dep't 2013).published
- Rosin v. Weinberg, 107 A.D.3d 682 (N.Y. App. Div. 2d Dep't 2013).published
- QK Healthcare, Inc. v. InSource, Inc., 108 A.D.3d 56 (N.Y. App. Div. 2d Dep't 2013).published
- McDonnell v. Bradley, 109 A.D.3d 592 (N.Y. App. Div. 2d Dep't 2013).published
- Stolarski v. Fam. Servs. of Westchester, Inc., 110 A.D.3d 980 (N.Y. App. Div. 2d Dep't 2013).published
- Ferreira v. Cellco P'ship, 111 A.D.3d 777 (N.Y. App. Div. 2d Dep't 2013).published
- Paino v. Kaieyes Realty, LLC, 115 A.D.3d 656 (N.Y. App. Div. 2d Dep't 2014).published
- Liberty Affordable Hous., Inc. v. Maple Court Apts., 125 A.D.3d 85 (N.Y. App. Div. 4th Dep't 2015).published
- Mawere v. Landau, 130 A.D.3d 986 (N.Y. App. Div. 2d Dep't 2015).published
- Davis v. Lancaster, 30 Misc. 3d 885 (N.Y. Sup. Ct. 2010).published
- Rodriguez v. Allstate Ins., 33 Misc. 3d 827 (N.Y. Sup. Ct. 2011).published
- Wang v. New York State Dep't of Health, 33 Misc. 3d 1038 (N.Y. Sup. Ct. 2011).published
- Jacobson v. Chase Bank, 34 Misc. 3d 38 (N.Y. App. Term. 2011).published
- Artis v. Random House, Inc., 34 Misc. 3d 858 (N.Y. Sup. Ct. 2011).published
- Krause v. Lancer & Loader Grp., LLC, 40 Misc. 3d 385 (N.Y. Sup. Ct. 2013).published
- Bransten v. State, 40 Misc. 3d 512 (N.Y. Sup. Ct. 2013).published
- Hedges v. East River Plaza, LLC, 43 Misc. 3d 278 (N.Y. Sup. Ct. 2013).published
- Smith v. New York City Hous. Auth., 46 Misc. 3d 236 (N.Y. Sup. Ct. 2013).published
- New York State United Teachers v. State, 46 Misc. 3d 250 (N.Y. Sup. Ct. 2014).published
- Clark v. Metro. Transp. Auth., 46 Misc. 3d 344 (N.Y. Sup. Ct. 2013).published
- R.M.W. v. G.M.M., 23 Misc. 3d 713 (N.Y.C. Fam. Ct. 2009).published
- Bedin v. Verni, 2024 NY Slip Op 32969(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublished
- Nicolaides v. Sunbelt Rentals, Inc, 2025 NY Slip Op 50014(U) (N.Y. Sup. Ct., New York Cty. 2025).unpublished
- Pesce v. Leimsider, 59 Misc. 3d 23 (N.Y. App. Term. 2018).published
- Nonnon v. City of New York, 88 A.D.3d 384 (N.Y. App. Div. 1st Dep't 2011).published
9 N.Y.3d at 825 Review of motion to dismiss and causation claims1 citing caseOPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.…
- Thomson v. New World Bible Translation Comm., 127 A.D.3d 731 (N.Y. App. Div. 2d Dep't 2015).publishedIn considering such a motion, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cogni…
9 N.Y.3d at 842 Determining general acceptance of expert principles1 citing case
- Sepulveda v. Dayal, 143 A.D.3d 591 (N.Y. App. Div. 1st Dep't 2016).published “Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with whether the [expert’s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” (Non…
v.
City of New York, Appellant. (And Other Actions.)
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
This litigation concerns the 81-acre Pelham Bay Landfill, owned and operated by the City of New York, and officially closed in 1978 after allegations of illegal dumping of pollutants. In 1982, the City determined that the landfill’s surface water and groundwater contained contaminants that exceeded state standards, and in 1983 the facility was listed as an inactive hazardous waste disposal site. Plaintiffs are children and adults (and their families or executors) who live or lived within one mile of the landfill and developed acute lymphoid leukemia or Hodgkin’s disease. Between 1991 and 1993, they brought nine lawsuits (since consolidated) alleging that the City’s negligence in creating and maintaining the landfill resulted in elevated levels of toxic substances that caused their injuries or deaths.
On September 29, 2000, the City moved both pursuant to CPLR 3211 and 3212 to dismiss several claims as barred by the statute of limitations, and pursuant to CPLR 3211 (a) (7) to dismiss the complaints as failing to state a cause of action. The City asserted that its 3211 (a) (7) motion was based on plaintiffs’ “inability to assert a causal connection between defendant’s conduct and the many injuries from which they purportedly suffer.”
[*827] Both the City and plaintiffs submitted expert affidavits addressed to causation. The trial court denied the City’s CPLR 3211 (a) (7) motion and the Appellate Division, with two justices dissenting, modified. * We now affirm solely on procedural grounds.
On a CPLR 3211 motion to dismiss, the court will “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). While affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). By contrast, a motion for summary judgment, which seeks a determination that there are no material issues of fact for trial, assumes a complete evidentiary record.
As the City’s motion was never converted to one for summary judgment, plaintiffs were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506 [1988]; see also Siegel, NY Prac § 270 [4th ed 2007] [the “notice requirement . . . offers the parties an opportunity to submit everything they’ve got”]). Here, plaintiffs suggest that due to the equivocal procedural posture of this case, they have not had the opportunity to submit all of their evidence relevant to a determination of causation (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). Accordingly, the City is not now entitled to dismissal of plaintiffs’ complaints for failure to state a cause of action.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.
Order affirmed, etc.
The majority modified Supreme Court’s order by granting the City’s motion to dismiss Christopher Angelilli’s claim on statute of limitations grounds, with leave to replead (see CPLR 214-c [4]).