Facts missing from a complaint were supplied by affidavit and should have been considered before dismissing the complaint.

Facts missing from a complaint that were supplied by affidavit in opposition to defendant carrier’s motion to dismiss cured the defect and should have been considered before dismissing the complaint. 

Plaintiff medical provider sued defendant no-fault carrier for treatments plaintiff had rendered to injured auto-accident victims, but the complaint failed to identify the patients treated or the policies under which plaintiff submitted claims for payment.  Defendant moved to dismiss the complaint for failure to state a cause of action under CPLR 3211(a)(7).  In opposition, plaintiff submitted an affidavit of its principal which supplied the missing information.  The First Department reversed the complaint’s dismissal and reinstated the complaint.

The First Department acknowledged that CPLR 3013 requires that a complaint be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions that form the basis of the complaint and the material elements of each cause of action.  The court further acknowledged the black-letter law that the factual allegations of the complaint are accepted as true and are afforded every possible favorable inference.  But it held, based on prior case law, that a court may freely consider plaintiff’s affidavits to remedy defects in the complaint.  The test is whether plaintiff has a cause of action, not whether plaintiff has stated one.  When such affidavits are considered, dismissal is appropriate only where a material fact claimed by the pleader is not a fact at all and there is no significant dispute regarding that fact.

The First Department further held that plaintiff sufficiently alleged that plaintiff was the assignee of claims and that a question of fact existed as to whether plaintiff failed to appear for examinations under oath, which was a condition precedent to coverage.

High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027, 1st Dept 3-22-16

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