CPLR R. 3211(a)(7) pleading fails to state a cause of action
Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 (2013)
In this case, though, Bally has moved to dismiss under CPLR 3211 (a)
(7), which limits us to an examination of the pleadings to determine
whether they state a cause of action. Further, we must accept facts
alleged as true and interpret them in the light most favorable to
plaintiff; and, as Supreme Court observed, plaintiff may not be
penalized for failure to make an evidentiary showing in support of a
complaint that states a claim on its face (see Rovello v Orofino Realty Co.,
40 NY2d 633, 635 [1976] [as long as a pleading is facially sufficient,
the plaintiff is not obligated to come forward with claim-sustaining
proof in response to a motion to dismiss unless the court treats the
motion as one for summary judgment and so advises the parties]).
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