Nonnon v. City of New York, 874 N.E.2d 720 (NY 2007). · Go Syfert
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Nonnon v. City of New York, 874 N.E.2d 720 (NY 2007). Cases Citing This Book View Copy Cite
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cited 21× by 21 distinct cases, 2010–2024 · 2 courts→ Stable · …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 at p. 827 ✓
cited 6× by 6 distinct cases↓ Fading · …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 at p. 827 ✓
cited 4× by 4 distinct cases, 2009–2012 · 2 courts→ Stable · …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 at p. 827 ✓
253 citation events (253 in the last 25 years) across 10 distinct courts.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Grauer v. Westhampton Beach Sch. Dist.
N.Y. App. Div. · 2026 · confidence medium
"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 inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Nonnon v City of New York , 9 NY3d 825, 827 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88 ; Gould v Decolator , 121 AD3d 845, 846-847 ).
examined Cited as authority (rule) NYC REQ Inc. v. Tweely Tubs LLC (3×)
N.Y. Sup. Kings · 2025 · confidence medium
"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 the facts as alleged fit within any cognizable legal theory" ( id. , quoting Nonnan v City of New York , 9 NY3d 825, 827 [2007] [internal quotations omitted]).
discussed Cited as authority (rule) Makransky v. Makransky (2×)
N.Y. App. Div. · 2025 · confidence medium
"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).
discussed Cited as authority (rule) Lara v. Tutor Perini Corp.
N.Y. Sup. Ct., New York Cty. · 2025 · confidence medium
While the Court must "determine only whether the facts as alleged fit within any cognizable legal theory" when adjudicating a CPLR 3211 motion, per Leon v. Martinez, 784 N.Y.2d at 87-88, a CPLR 3212 motion for summary judgment "seeks a determination that there are no material issues of fact for trial" and "assumes a complete evidentiary record." Nonnon v. City of New York, 9 N.Y.3d 825, 827 (N.Y. 2007) (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").
discussed Cited as authority (rule) Roberson v. New York City Health & Hosp. Corp.
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
“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 cognizable legal theory’” (Nonnon v City of New York, 9 NY3d 825, 827 [2007]).
discussed Cited as authority (rule) Leon-Burgos v. New York City Tr. Auth.
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
However, 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 and not to offer evidentiary support for properly pleaded claims" (Nonnon v City of New York, 9 NY3d 825, 827 [2007]).
discussed Cited as authority (rule) Minor v. Essence Ventures, LLC
N.Y. Sup. Kings · 2024 · confidence medium
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." Nonnon v. City Of New York, 9 NY3d 825, 827 (2007); Kassapian v City of New York , 155 AD3d 851, 853 , (2d Dept. 2017); Harris v. IG Greenpoint Corp ., 72 AD3d 608, 609 (1st Dept. 2010); Pepler v. Coyne , 33 AD3d 434, 435 (1st Dept. 2006); Artis v Random House, Inc ., 34 Misc 3d 858, 863 (Sup. Ct., NY Co. 2011).
discussed Cited as authority (rule) Minor v. Essence Ventures, LLC
N.Y. Sup. Kings · 2024 · confidence medium
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." Nonnon v. City Of New York, 9 NY3d 825, 827 (2007); Kassapian v City of New York , 155 AD3d 851, 853 , (2d Dept. 2017); Harris v. IG Greenpoint Corp ., 72 AD3d 608, 609 (1st Dept. 2010); Pepler v. Coyne , 33 AD3d 434, 435 (1st Dept. 2006); Artis v Random House, Inc ., 34 Misc 3d 858, 863 (Sup. Ct., NY Co. 2011).
discussed Cited as authority (rule) Kinnear v. Cefoli
N.Y. App. Div. · 2020 · confidence medium
"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 within any cognizable legal theory" ( Nonnon v City of New York , 9 NY3d 825, 827 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87 ).
discussed Cited as authority (rule) Portville Truck and Auto Repair, Inc. v. Mack Trucks, Inc.
W.D.N.Y. · 2020 · confidence medium
Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007) (“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.” (quotation omitted)); see Gensler v. Sanolfi-Aventis, No. 08-CV-2255, 2009 WL 857991 , at *3 n.3 (E.D.N.Y.
discussed Cited as authority (rule) Kaplan v. Conway & Conway
N.Y. App. Div. · 2019 · confidence medium
As 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 allege facts that "fit into any cognizable legal theory" ( see Nonnon v City of New York , 9 NY3d 825, 827 [2007], quoting Leon v Martinez , 84 NY2d 83, 87-88 [1994] [internal quotation marks omitted]).
discussed Cited as authority (rule) Ferrera v. City of New York
N.Y. App. Div. · 2018 · confidence medium
In 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 facts as alleged fit within any cognizable legal theory'" ( Sokol v Leader , 74 AD3d 1180, 1180 , quoting Nonnon v City of New York , 9 NY3d 825, 827 [internal quotation marks omitted]).
discussed Cited as authority (rule) Matter of Kevin B. v. Zovania B.
N.Y. App. Div. · 2018 · confidence medium
However, 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]).
discussed Cited as authority (rule) Saul v. Cahan
N.Y. App. Div. · 2017 · confidence medium
In 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 whether the facts as alleged fit within any cognizable legal theory’ ” (Non- non v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Duverney v. City of New York
N.Y. Sup. Ct. · 2017 · confidence medium
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 of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) Morse v. Fidessa Corp.
N.Y. Sup. Ct. · 2017 · confidence medium
It 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 of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) XXXX, L.P. v. 363 Prospect Place, LLC
N.Y. App. Div. · 2017 · confidence medium
In 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 facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Pinnacle Realty of N.Y., LLC v 255 Butler, LLC, 125 AD3d 952 [2015]).
discussed Cited as authority (rule) Weinstein v. CohnReznick, LLP
N.Y. App. Div. · 2016 · confidence medium
In 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 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 Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Sepulveda v. Dayal (2×)
N.Y. App. Div. · 2016 · confidence medium
Feldman v Levine , 90 AD3d 477 [1st Dept 2011]). " 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" ( Nonnon v City of New York , 32 AD3d 91, 103 [1st Dept 2006], affd 9 NY3d 825, 842 [2007]; see also Marsh v Smyth , 12 AD3d 307, 308 [1st Dept 2004]).
discussed Cited as authority (rule) Kaplan v. New York City Dept. of Health & Mental Hygiene
N.Y. App. Div. · 2016 · confidence medium
Affording 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]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]), the plaintiff stated a cause of action alleging sexual harassment pursuant to the NYCHRL.
discussed Cited as authority (rule) Manning v. Pioneer Savings Bank
N.Y. Sup. Ct. · 2016 · confidence medium
When 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 inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007]).
discussed Cited as authority (rule) Hutchison v. Kings County Hospital Center
N.Y. App. Div. · 2016 · confidence medium
In 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 determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Sokol v Leader, 74 AD3d at 1181 , quoting Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]).
discussed Cited as authority (rule) Fedele v. Qualified Personal Residence Trust of Doris Rosen Margett
N.Y. App. Div. · 2016 · confidence medium
The 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 [2007]).
discussed Cited as authority (rule) Wallkill Medical Development, LLC v. Catskill Orange Orthopaedics
N.Y. App. Div. · 2015 · confidence medium
In 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 whether the facts as alleged fit within any cognizable legal theory (see Non-non v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Paolicelli v Fieldbridge Assoc., LLC, 120 AD3d 643, 644 [2014]).
discussed Cited as authority (rule) Blue Island Development, LLC v. Town of Hempstead
N.Y. App. Div. · 2015 · confidence medium
Here, 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 Martinez, 84 *501 NY2d 83, 87-88 [1994]), we find that Blue Island sufficiently alleged that the restrictive covenant is improper because it regulates Blue Island’s ability as the owner of the property to rent the units rather than the use of the land itself.
discussed Cited as authority (rule) Baines v. Daily News L.P.
N.Y. Sup. Ct. · 2015 · confidence medium
Dismissal 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.
discussed Cited as authority (rule) GFRE, Inc. v. U.S. Bank, N.A.
N.Y. App. Div. · 2015 · confidence medium
In 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 facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) J&E Industries of Ossining, Inc. v. Peekskill Housing Authority
N.Y. App. Div. · 2015 · confidence medium
In 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 facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Everett v. Eastchester Police Department
N.Y. App. Div. · 2015 · confidence medium
In 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 whether the facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Pinnacle Realty of N.Y., LLC v 255 Butler, LLC, 125 AD3d 952 [2015]).
discussed Cited as authority (rule) Ackerman v. New York Hosp. Med. Ctr. of Queens
N.Y. App. Div. · 2015 · confidence medium
In 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 whether the facts as alleged fit within any cognizable legal theory (see Non-non v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Paolicelli v Fieldbridge Assoc., LLC, 120 AD3d 643, 644 [2014]).
discussed Cited as authority (rule) Thomson v. New World Bible Translation Committee
N.Y. App. Div. · 2015 · confidence medium
In 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 cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Kritzer v. Ventura Insurance Brokerage, Inc.
N.Y. Sup. Ct. · 2015 · confidence medium
(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, 433 [1st Dept 2014]; Cabrera v Collazo, 115 AD3d 147, 150 [1st Dept 2014].) Dismissal is warranted 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.
discussed Cited as authority (rule) Pinnacle Realty of New York, LLC v. 255 Butler, LLC
N.Y. App. Div. · 2015 · confidence medium
In 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 facts as alleged fit within any cognizable legal theory” (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Agai v Liberty Mut.
discussed Cited as authority (rule) Hock v. Cohen
N.Y. App. Div. · 2015 · confidence medium
On 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, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
discussed Cited as authority (rule) Morris v. Chase Bank
N.Y. App. Div. · 2015 · confidence medium
In 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 inference, and determine 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 Martinez, 84 NY2d 83, 87-88 [1994]; Nerey v Greenpoint Mtge.
discussed Cited as authority (rule) Webb v. Greater New York Automobile Dealers Ass'n
N.Y. App. Div. · 2014 · confidence medium
In 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 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 Martinez, 84 NY2d 83, 87-88 [1994]; Paolicelli v Fieldbridge Assoc., LLC, 120 AD3d 643, 644 [2014]).
discussed Cited as authority (rule) Papa v. Fairfield on the Green
N.Y. App. Div. · 2014 · confidence medium
Accepting 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 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Tooma v Grossbarth, 121 AD3d 1093 [2014]; Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724 [2014]), the complaint sufficiently states, with the required particularity (see CPLR 3016 [b]), a cause of action to recover damages for fraud (see Nerey v Greenpoint Mtge.
discussed Cited as authority (rule) Siskin v. Cassar
N.Y. App. Div. · 2014 · confidence medium
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 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 *716 cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Nerey v Greenpoint Mtge.
discussed Cited as authority (rule) MarstonvGeneralElectricCompany
N.Y. App. Div. · 2014 · confidence medium
Moreover, 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 Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rovello v Orofino Realty Co., 40 NY2d at 636 ).
discussed Cited as authority (rule) Marston v. General Electric Co.
N.Y. App. Div. · 2014 · confidence medium
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., Inc., 20 NY3d 342, 351 [2013]; Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rovello v Orofino Realty Co., 40 NY2d at 636 ).
discussed Cited as authority (rule) Marston v. General Electric Co.
N.Y. App. Div. · 2014 · confidence medium
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., Inc., 20 NY3d 342, 351 [2013]; Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rovello v Orofino Realty Co., 40 NY2d at 636 ).
discussed Cited as authority (rule) Gould v. Decolator
N.Y. App. Div. · 2014 · confidence medium
In 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 inference, and determine 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 Martinez, 84 NY2d 83, 87-88 [1994]; Nerey v Greenpoint Mtge.
discussed Cited as authority (rule) Korsinsky v. Rose
N.Y. App. Div. · 2014 · confidence medium
Ordered 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 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 cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Nerey v Greenpoint Mtge.
discussed Cited as authority (rule) Friedland Realty, Inc. v. 416 W, LLC
N.Y. App. Div. · 2014 · confidence medium
On 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 the benefit of every possible favorable inference, and determine 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 Martinez, 84 NY2d 83, 87-88 [1994]; Siracusa v Sager, 105 AD3d 937, 938 [2013]).
discussed Cited as authority (rule) Air & Power Transmission, Inc. v. Weingast
N.Y. App. Div. · 2014 · confidence medium
Accepting 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 York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the conduct complained of was not consumer-oriented, as it did not affect consumers at large (see Cathy Daniels, Ltd. v Weingast, 91 AD3d at 435 ; Eaves v Designs for Finance, Inc., 785 F Supp 2d at 266 ; see also Yellow Book Sales & Distrib.
discussed Cited as authority (rule) J.A. Lee Electric, Inc. v. City of New York
N.Y. App. Div. · 2014 · confidence medium
In 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 cognizable legal theory’ ” (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d at 87-88 ).
discussed Cited as authority (rule) Mariano v. Fiorvante
N.Y. App. Div. · 2014 · confidence medium
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 causes of action sounding in conversion and negligence as time-barred and pursuant to CPLR 3211 (a) (7) to dismiss the causes of action sounding in fraud, breach of contract, and “elder abuse” for failure to state a cause of action, In assessing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, th…
discussed Cited as authority (rule) Mariano v. Fiorvante
N.Y. App. Div. · 2014 · confidence medium
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 causes of action sounding in conversion and negligence as time-barred and pursuant to CPLR 3211 (a) (7) to dismiss the causes of action sounding in fraud, breach of contract, and “elder abuse” for failure to state a cause of action, In assessing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, th…
discussed Cited as authority (rule) Greenberg v. Blake
N.Y. App. Div. · 2014 · confidence medium
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 inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’…
discussed Cited as authority (rule) Greenberg v. Blake
N.Y. App. Div. · 2014 · confidence medium
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 inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’…
Retrieving the full opinion text from the archive…
Patricia Nonnon, Individually and as Executrix of Kerri Nonnon, Deceased, Et Al., Respondents,
v.
City of New York, Appellant. (And Other Actions.)
New York Court of Appeals.
Jun 27, 2007.
874 N.E.2d 720
APPEARANCES OF COUNSEL, Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Leonard Koerner and Christopher G. King of counsel), for appellant., Mauro Goldberg & Lilling LLP, Great Neck (Barbara DeCrow Goldberg, Kenneth Mauro and Richard J. Montes of counsel), for respondents., Herzfeld & Rubin, P.C., New York City (Michael Hoenig and Miriam Skolnik of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae., Atlantic Legal Foundation, New York City (Martin S. Kaufman of counsel), for Marcia Angelí and others, amici curiae.
Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones Concur in Memorandum.
Cited by 228 opinions  |  Published

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]).