Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 10 of 35
pursuant to Rule 56.
In considering a
motion to dismiss,
the Court may rely on the factual allegations set forth in
the complaint itself and not on additional matters asserted
in
affidavits,
exhibits
conjunction with
York:,
the
or
motion.
other
papers
See !"_riedl
submitted
v.
City
of
in
New
210 F.3d 79, 83-84 (2d Cir. 2000). Because both sides
have submitted substantive declarations or other materials
not
included
in
the
Complaint,
the
Court
considers
the
Government's motion as one for summary judgment.
The Court may grant summary judgment only if it finds
that "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law."
Fed.
R.
Civ.
P.
56(a).
The role of a court
in ruling on
such a motion "is not to resolve disputed issues of
but to assess whether there are any factual
tried,
issues to be
while resolving ambiguities and drawing reasonable
inferences
against
the
States Fire Ins. Co.,
moving
party."
804 F.2d 9,
moving party bears the burden of
issue of material
paucity
fact
of
fact
evidence
exists
(2d Cir.
proving that
or that
presented
rational factfinder could find
11
Knight
by
by
the
v.
United
1986).
The
no genuine
reason of
the
non-movant,
no
in favor of the non-moving
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