Khaldarov v. Neighborhood Housing Service of Nyc

On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211[a][7], the allegations contained in the complaint must be presumed to be true and liberally construed (Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372; Schulman v Chase Manhattan Bank, 268 AD2d 174). Moreover, although the court "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Well v Rambam, 300 AD2d 580), the papers submitted in opposition to the motion are insufficient since they are not in affidavit form. Accordingly, a determination of whether the complaint states any cause of action must be based solely on the four corners of the pleading.