The rules are familiar to litigators: On a pre-answer motion to dismiss a claim pursuant to CPLR 3211(a)(7) (which permits dismissal where “the pleading fails to state a cause of action”), the factual allegations in the complaint are treated as true and all reasonable inferences are drawn in the plaintiff’s favor. A defendant who moves to dismiss under CPLR 3211(a)(7) generally argues that those allegations provide no legal basis for relief. One who wishes to present evidence on a pre-answer motion usually proceeds instead under CPLR 3211(a)(1), which permits dismissal where “a defense is founded upon documentary evidence.” But an examination of relevant case law regarding these rules suggests that CPLR 3211(a)(7) may actually provide a more flexible vehicle for the use of evidence than CPLR 3211(a)(1).

The Court of Appeals opened this door in Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-36 (1976), explaining that, because a plaintiff seeking to avoid dismissal under CPLR 3211(a)(7) may “freely” use affidavits “to preserve inartfully pleaded, but potentially meritorious, claims,” “there may be instances” where the plaintiff’s submission has the opposite of its intended effect and “conclusively establish[es] that he has no cause of action.” By the same token, the court observed, if “affidavits submitted by the defendant … establish conclusively that the plaintiff has no cause of action,” dismissal may be appropriate—without converting the motion to one for summary judgment under CPLR 3211(c). Id. at 636.