(dissenting). I respectfully dissent in part. I agree with the majority that Supreme Court properly denied the motion of defendants Norman Habib and NHJB, Inc., doing business as Molly’s Pub (NHJB defendants), to dismiss the complaint against them. I do not agree with the majority, however, that the court erred in denying the motion of defendant Michael Miranda to dismiss the complaint against him. I therefore would affirm the order.
It is well settled that, on a CPLR 3211 (a) (7) motion to dismiss, “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Barski v Town of Aurelius, 147 AD3d 1483, 1483 [2017]). “We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). As this Court recognized in Liberty Affordable Hous., Inc. v Maple Ct. Apts. (125 AD3d 85, 89 [2015]), “evidentiary submissions may only be considered for a limited purpose in assessing the facial sufficiency of a civil complaint . . . This limited purpose ... is twofold. On the one hand, affidavits submitted by the defendant [as movant] will seldom if ever warrant the relief sought under CPLR 3211 (a) (7) unless too the affidavits establish conclusively that plaintiff has no cause of action . . . On the other hand, the nonmoving party may freely submit evidentiary materials to preserve inartfully pleaded, but potentially meritorious, claims” (internal quotation marks omitted).
The complaint, liberally construed, alleges that Miranda was the owner of the subject premises located at 3199 Main Street, Buffalo, New York, commonly known as Molly’s Pub. It further alleges that Miranda is an owner, principal, director, operating partner, and/or silent partner with the NHJB defendants and Molly’s Pub. Despite the fact that the complaint alleges the same facts and causes of action as to the NHJB defendants
*1912and Miranda, the majority concludes that plaintiff stated a cause of action against the NHJB defendants, but failed to do so as to Miranda. The majority relies on, inter alia, Miranda’s submission of the lease and an affidavit that indicated that he was “merely an out-of-possession landlord.” In my view, the language contained in the lease is not dispositive and, accepting the allegations in the complaint as true, I conclude that plaintiff is entitled to discovery on the issue whether Miranda “actually was an out-of-possession landlord [who] had relinquished control [of the premises]” (Kane v Port Auth. of N.Y. & N.J., 49 AD3d 503, 504 [2008]).
Present — Smith, J.P., DeJoseph, Troutman and Scudder, JJ.