Substantial Basis Test in New York
In Castle Village Owners Corp. v. Greater New York Mut. Ins. Co., 58 AD3d 178, 183, 868 N.Y.S.2d 189 (1st Dept 2008), the court defined the "substantial basis" test:
The 'substantial basis' standard set forth in CPLR 3211(h) constitutes a departure from the standard ordinarily applicable to the review of CPLR 3211 motions to dismiss for failure to state a cause of action. Rather than determine whether the allegations of the complaint when viewed most favorably to the plaintiff fall within any cognizable legal theory..., a court reviewing the sufficiency of a complaint under CPLR 3211(h) must look beyond the face of the pleadings to determine whether the claim alleged is supported by 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' .... While under this standard a plaintiff need not demonstrate that the claim is supported by a preponderance of the evidence..., 'a fair inference to be drawn from the legislative history is that CPLR 3211(h) was intended to heighten the court's scrutiny of the complaint and thereby make it easier to dismiss a CPLR 214-d action than other types of negligence actions' (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 214-d, at 460).
In Castle Village Owners Corp., supra, the First Department found the heightened requirement of CPLR 3211(h) had been satisfied where the complaint alleged with specificity and in detail that the defendant had departed from the professional standard of care and that its conduct was a proximate cause of the injury complained of, which allegations were supported by the affidavit of complainant's expert, a registered professional engineer.
In denying the CPLR 3211(h) motion to dismiss the First Department determined, "the allegations of the complaint and the expert affidavit provide a 'substantial basis' to believe that defendant was negligent in the performance of its professional design duties and that the negligence was a proximate cause of the damage (Castle Village Owners Corp., supra, 58 AD3d at 184).