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6 May 2022, 4:12 am
“The amended complaint states a cause of action for legal malpractice and the documents submitted do not utterly refute the factual allegations underlying that cause of action (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. [read post]
4 Apr 2022, 3:58 am
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, accept all facts as alleged in the complaint 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 Leon v Martinez, 84 NY2d 83, 87). [read post]
21 Mar 2022, 3:24 am
Leon v Martinez, 84 NY2d 83, 87-88 [1994]). [read post]
2 Mar 2022, 4:18 am
Therefore, at this stage, dismissal was not warranted under CPLR 3211(a)(7), or under CPLR 3211(a)(1), as defendant failed to provide documentary evidence that “conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014])” [read post]
3 Jan 2022, 5:28 am
” “The complaint, as augmented by the affidavit of Singh submitted in opposition to the defendants’ motion to dismiss, sufficiently stated a cause of action for legal malpractice (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88; Doe v Ascend Charter Schs., 181 AD3d 648, 649-650). [read post]
27 Dec 2021, 4:34 am
Accepting plaintiff’s averments and allegations as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them (see New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal… [read post]
13 Dec 2021, 3:06 am
Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual [*2]allegations as to proximate cause. [read post]
15 Nov 2021, 3:30 am
On a motion to dismiss a cause of action pursuant to CPLR 3211(a), 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 CPLR 3026; Leon v Martinez, 84 NY2d 83, 87-88). [read post]
15 Oct 2021, 4:30 am
Giving plaintiff 'the benefit of all favorable inferences which may be drawn from [the] pleading,' this Court determines only whether the alleged facts "fit within any cognizable legal theory' (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). [read post]
15 Oct 2021, 4:30 am
Giving plaintiff 'the benefit of all favorable inferences which may be drawn from [the] pleading,' this Court determines only whether the alleged facts "fit within any cognizable legal theory' (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). [read post]
6 Oct 2021, 5:26 am
Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d at 88). [read post]
19 Aug 2021, 4:00 am
Further, said the court, "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", noting the Court of Appeals ruling in Leon v Martinez, 84 NY2d 83. [read post]
19 Aug 2021, 4:00 am
Further, said the court, "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", noting the Court of Appeals ruling in Leon v Martinez, 84 NY2d 83. [read post]
13 Aug 2021, 6:06 pm
For example, Variety reported that Councilmember Kevin de Leon stated, “This is a no-brainer. [read post]
9 Jul 2021, 3:08 am
” “Here, even accepting the facts alleged in the complaint, as amplified by the plaintiff’s affidavit, as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the plaintiff failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome on his workers’ compensation claim (see Katsoris v Bodnar… [read post]
7 Jun 2021, 5:14 am
Here, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint failed to sufficiently allege a failure by the defendants to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession and that any breach of such duty proximately caused damages (see Cali v Maio, 189 AD3d 1337). [read post]
5 Feb 2021, 3:07 am
“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Leon v Martinez, 84 NY2d 83, 88). [read post]
28 Jul 2020, 10:25 am
., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88; Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924). [read post]
19 May 2020, 5:59 am
Accepting as true the facts alleged in the complaint, and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the conclusory allegations of the complaint failed to adequately plead specific facts to establish that, but for the defendants’ alleged negligent conduct, the outcome in the underlying action would have been any more favorable to the plaintiffs, or that the plaintiffs would not have incurred any damages (see… [read post]
14 May 2020, 12:09 pm
[Author’s note: The Leon good-faith exception does not apply to violations of the North Carolina Constitution under State v. [read post]
