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STEVE ELLIOT, LLC v. TEPLITSKY

59 A.D.3d 523 (2009)

873 N.Y.S.2d 672

STEVE ELLIOT, LLC, Respondent, v. MICHAEL TEPLITSKY et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 10, 2009.

Ordered that the order is affirmed, with costs.

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must determine whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; Fishberger v Voss, 51...

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