Fishberger v. Voss
| Decision Date | 06 May 2008 |
| Docket Number | 2007-04318.,2007-11760. |
| Citation | 2008 NY Slip Op 04314,51 A.D.3d 627,858 N.Y.S.2d 257 |
| Parties | STEVEN B. FISHBERGER et al., Appellants, v. CHRISTIAN H. VOSS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendant Houlihan Lawrence, Inc.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, 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" (Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]).
In support of the fifth cause of action in the amended complaint, the plaintiffs alleged, inter alia, that a particular condition affecting certain property they contracted to purchase "was not reasonably discoverable by" them. However, certain evidentiary material submitted on the motion to dismiss demonstrated, without significant...
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