CPLR R. 3211(a)(7)

On a motion to dismiss a complaint for failure to state a cause of
action under CPLR 3211(a)(7), the facts alleged in the complaint must
be accepted as true and given every favorable inference, and
"affidavits submitted by a [defendant] will almost never warrant
dismissal … unless they establish conclusively that [plaintiff] has
no [claim or] cause of action'" (Lawrence v Miller, NY3d , 2008 NY Slip Op 9434, *8, quoting Rovello v Orofino Realty Co., 40
NY2d 633, 635-636 [1976]). Applying this review standard, we find that
plaintiff's action against the Gold defendants was prematurely
dismissed. Plaintiff has not had the opportunity to lay bare admissible
proof as to defendants' alleged wrongful conduct, and although
defendants' [*2]supporting affidavit may
have presented a seemingly strong defense, it did not conclusively
establish that plaintiff has no cause of action.

However, the plaintiff sufficiently alleged the third cause of action
to recover damages under the theory of strict liability. On a motion to
dismiss pursuant to CPLR 3211(a)(7), the court may consider affidavits
submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Meyer v Guinta, 262 AD2d 463, 464).

In their answer, the defendants asserted counterclaims based on certain
allegedly fraudulent misrepresentations made by the plaintiff. In order
to prevail on the counterclaims, the defendants would have to
demonstrate, among other things, that they justifiably relied on the
plaintiff's alleged misrepresentations, and were injured as a result of
those misrepresentations (see Channel Master Corp. v Aluminum Ltd. Sales,
4 NY2d 403, 407). However, even when accepting the facts alleged in
support of the counterclaims as true, and according the defendants the
benefit of every possible favorable inference (see Leon v Martinez,
84 NY2d 83, 87), the counterclaims are not supported by sufficient
allegations from which it could reasonably be found that the defendants
justifiably relied on the alleged misrepresentations (see Sareen v Sareen, 51 AD3d 765). Furthermore, some of the counterclaims are not supported by sufficient allegations from which it could reasonably be found [*2]that the defendants were injured as a result of the alleged misrepresentations (see Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363,
364-365). Under these circumstances, the Supreme Court should have
granted that branch of the plaintiff's motion which was to dismiss the
counterclaims (seesee also CPLR 3016[b]).
CPLR 3211[a][7];