CPLR R. 3211(a)(1) defense is founded upon documentary evidence
CPLR R. 3211(a)(7) pleading fails to state a cause of action
First & 91 LLC v 1765 First Assoc. LLC, 2009 NY Slip Op 50639(U) (Sup. Ct. NY, 2009)
On a motion to dismiss under CPLR 3211, the court is charged with
determining only whether the facts as alleged in the complaint fit
within any cognizable legal theory. Morone v. Morone, 50 NY2d
481, 484 (1980). The pleadings on such a motion are to be afforded a
liberal construction, and the plaintiff is to be granted the benefit of
every possible doubt. Leon v. Martinez, 84 NY2d 83, 87 (1994).
A 3211 motion must be denied if from the four corners of the pleadings,
"factual allegations are discerned which taken together manifest any
cause of action cognizable at law." 511 West 232nd Owners Corp. v. Jennifer Reality Co., 98 NY2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 NY2d 46 (2001).Dismissal of a complaint pursuant to CPLR 3211(a)(1) is only
warranted where the documentary evidence submitted utterly refutes and
resolves plaintiff's factual allegations and conclusively establishes a
defense to the asserted claims as a matter of law. Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); see Leon, 84 NY2d at 88. Permissible documentation includes contracts, deeds, judgments, and judicial records. Webster v. State of New York,
2003 WL 728780 (Court of Claims 2003). When documentary evidence is
considered on a 3211(a)(7) motion, "the criterion is whether the
proponent of the pleading has a cause of action, not whether he has
stated one." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977).
Where the complaint fails to present facts sufficient to support the
legal claim asserted, the complaint will be deficient and dismissal
proper. D. & C. Textile Corp. v. Rudin, 41 Misc 2d 916, 917 (Sup Ct, NY County 1964).…
The court agrees with plaintiff that the motion to dismiss is
premature. Almost no discovery has been conducted, when it is evident
that months and months, if not years, of discovery will be required
here. This will undoubtedly include extensive testing of the crane
itself. Until all of this is done, the root causes of the tragedy will
remain a mystery.
The bold is mine. Interesting facts here. Worth reading.
bruteforcelawyer.com 
Can the defendant site CPLR R. 3211(a)(7)after the plaintiffs complaint has gone before a judge for an RJI and the judge put the action into Civil Court from supreme court and after the defendant has already “answered”?
Thank you from desperate pro se.
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