Xiu Jian Sun v. Lam

2016 NY Slip Op 6823, 143 A.D.3d 891, 38 N.Y.S.3d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2016
• Docket: 2015-06399
• Status: Published

Opinion

Appeal by the plaintiff from an order of the Supreme Court, Queens County (Livote, J.), entered April 3, 2015, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is affirmed, without costs or disbursements.

“In deciding a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must accept the facts 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” (Fough v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 AD3d 665, 666 [2016]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

In this case, the complaint does not set forth any legal theory, nor does it allege any fact in support of a legal theory. Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Dillon, J.P., Roman, Hinds-Radix and Duffy, JJ., concur.