conclusions. Plaintiffs have neither rebutted the collateral estoppel bar to pursuit of this action, nor controverted the documentary evidence presented, including their statements in open court on the record.
                                              ARGUMENT IN REPLY

Plaintiffs’ Opposition Fails To Overcome The
Collateral Estoppel Bar To Pursuit Of This Action

     3.    At the outset, it is significant to recognize that plaintiffs rely on the wrong standard of review for the instant motion by asserting "the sole criteria on a §321 1(a)(7) motion to dismiss is whether the complaint states a cause of action." See Plaintiffs’ Joint Affidavits in Opposition at ¶42. However, where, as here, plaintiffs have submitted evidentiary material for consideration, including their own affidavits as part of their opposition, the appropriate inquiry in determining a motion to dismiss is whether plaintiffs, in fact, have a cause of action not whether they have merely stated one. Steiner v. Lazzaro & Gregory, P.C., 271 A.D.2d 596, 706, N.Y.S.2d 157 (2d Dep’t 2000).
     4.    Moreover, although generally on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR §321 1(a)(7), the facts pled are presumed to be true and are accorded every favorable inference, "where, as here, the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration." Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 (1st Dep’t 1997). Accordingly, contrary to plaintiffs’ contention (see Plaintiffs’ Joint Affidavit in Opposition, ¶ 41), plaintiffs’ allegations and conclusions do not enjoy a favorable
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