One frequently sees an argument made in motions to dismiss pursuant to CPLR 3211 (multiple sub-divisions) in which evidentiary material is submitted by defendant, and it is argued that damages cannot be ascertained or proven.

In Simpson v Alter ;2010 NY Slip Op 08089 ;Decided on November 9, 2010 ;Appellate Division, Second Department the Court answers this question:
 

"The Supreme Court also properly denied that branch of the appellants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Sokol v Leader, 74 AD3d 1180). "Where evidentiary material is submitted on a CPLR 3211(a)(7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted" (Quesada v Global Land, Inc., 35 AD3d 575, 576; see Caravousanos v Kings County Hosp., 74 AD3d 716). Contrary to the appellants’ contention, the documentary evidence which indicated that certain information about the plaintiff’s residency status may have been publicly available does not completely disprove her factual allegation that Alter divulged personal information which she had imparted to him when he represented her in 2003. Furthermore, the complaint sufficiently pleads allegations from which damages attributable to the appellants’ alleged legal malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d 763, 764; see also Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168)."