The Problem with CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

Thomas v Thomas, 2010 NY Slip Op 01586 (App. Div., 1st, 2010)

Because the instant motion is pursuant to CPLR 3211, the complaint "is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard, plaintiffs have stated a cause of action for a constructive trust. As a preliminary matter, it is accepted that a constructive trust over real property can be imposed even where an underlying agreement is not in writing (see Sharp, 40 NY2d at 122). The complaint clearly alleges that Janet Thomas promised to transfer the property back to plaintiffs. It can be inferred that plaintiffs relied on that promise, or they would have not made the transfer. That plaintiffs meant to convey in their complaint that Janet Thomas would be unjustly enriched without judicial intervention can be similarly assumed.

While it is not clearly spelled out in the complaint that plaintiffs and Janet Thomas had a confidential relationship, Janet Thomas's affidavit, submitted in support of her motion, provides sufficient information to draw such an inference. Specifically, the affidavit volunteers the existence of the partner program and the fact that, until shortly before the transaction at issue, the parties were co-venturers in a quasi-banking enterprise, however informal that enterprise may have been. This is sufficient to infer that the parties had fiduciary responsibilities to one another [*3]which elevated the relationship from one of mere acquaintances to a "confidential" one. We disagree with the dissent's position that we may not consider Janet Thomas's affidavit. On a CPLR 3211 motion a plaintiff's affidavit "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976]). It follows, a fortiori, that admissions in a defendant's affidavit may similarly be used to ascertain whether a plaintiff has a valid cause of action.


ROMÁN, J. (dissenting)

Since I believe that the majority misconstrues well settled law, applicable to motions to dismiss pursuant to CPLR § 3211(a)(7), I dissent.


When deciding a motion to dismiss a complaint, pursuant to CPLR 3211(a)(7), all [*4]allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (id.). In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint (CPLR 3211[c]; Cron v Hargro Fabrics, 91 NY2d at 366; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Amaro v Gani Realty Corp., 60 AD3d 491, 492 [2009]). If an affidavit is submitted for that purpose, it should be given its most favorable intendment (Cron v Hargro Fabrics, 91 NY2d at 366).


While a plaintiff can cure pleading defects by submitting an affidavit, it does not follow that any such defects in a plaintiff's pleadings can be cured by a defendant's submissions, affidavit or otherwise. Here the majority finds that the existence of a confidential relationship by virtue of an affidavit submitted by Janet Thomas in support of her motion to dismiss the complaint. While the majority's position finds some support in Rovello v Orofino Realty Co., 40 NY2d 633 [1976], where the court held that affidavits can be used to correct pleading defects in a complaint, without ever stating whose affidavits could be so considered, in Leon and then again in Cron, the Court of Appeals, while citing Rovello, nevertheless implicitly narrowed the holding in Rovello, stating that "[i]n opposition to such a motion [one pursuant to CPLR 3211], a plaintiff may submit affidavits to remedy defects in the complaint' and preserve inartfully pleaded but potentially meritorious claims'" (Cron v Hargro Fabrics, 91 NY2d at 366, citing Rovello v Orofino Realty Co., Inc., 40 NY2d at 635-636 [emphasis added]). Thus, it is only a plaintiff's affidavit which can be used to remedy a defect in the complaint (id.; see Leon v Martinez, 84 NY2d at 88; Amaro v Gani Realty Corp., 60 AD3d at 492; see also Fitzgerald v Federal Signal Corp., 63 AD3d 994, 995 [2009]).

The bold is mine.  (a)(7), like (a)(1), and like 5015, is constantly construed differently.  Someone needs to clear this mess up.

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