2019 New York Laws
CVP - Civil Practice Law and Rules
Article 32 - Accelerated Judgment
R3211 - Motion to Dismiss.

Universal Citation:
NY CPLR § 3211 (2019)
Learn more This media-neutral citation is based on the American Association of Law Libraries Universal Citation Guide and is not necessarily the official citation.
Rule  3211.  Motion to dismiss. (a) Motion to dismiss cause of action.
A party may move for judgment dismissing one or more  causes  of  action
asserted against him on the ground that:
  1. a defense is founded upon documentary evidence; or
  2.  the  court has not jurisdiction of the subject matter of the cause
of action; or
  3. the party asserting the cause of action has not legal  capacity  to
sue; or
  4.  there  is  another action pending between the same parties for the
same cause of action in a court of any state or the United  States;  the
court  need  not  dismiss  upon  this  ground but may make such order as
justice requires; or
  5. the cause of action may not be maintained  because  of  arbitration
and  award,  collateral  estoppel,  discharge  in bankruptcy, infancy or
other disability of the moving party, payment,  release,  res  judicata,
statute of limitations, or statute of frauds; or
  6.  with  respect to a counterclaim, it may not properly be interposed
in the action; or
  7. the pleading fails to state a cause of action; or
  8. the court has not jurisdiction of the person of the defendant; or
  9. the court has not jurisdiction in an action where service was  made
under section 314 or 315; or
  10. the court should not proceed in the absence of a person who should
be a party.
  11.  the  party  is  immune  from  liability pursuant to section seven
hundred twenty-a of  the  not-for-profit  corporation  law.  Presumptive
evidence  of the status of the corporation, association, organization or
trust under section 501 (c) (3) of the internal revenue code may consist
of production of a  letter  from  the  United  States  internal  revenue
service  reciting  such determination on a preliminary or final basis or
production of an official publication of the  internal  revenue  service
listing  the  corporation,  association,  organization  or  trust  as an
organization described in such  section,  and  presumptive  evidence  of
uncompensated status of the defendant may consist of an affidavit of the
chief financial officer of the corporation, association, organization or
trust.  On  a  motion by a defendant based upon this paragraph the court
shall determine whether such defendant is entitled  to  the  benefit  of
section  seven hundred twenty-a of the not-for-profit corporation law or
subdivision six of section 20.09 of the arts and  cultural  affairs  law
and,  if it so finds, whether there is a reasonable probability that the
specific conduct of such defendant alleged constitutes gross  negligence
or was intended to cause the resulting harm. If the court finds that the
defendant  is entitled to the benefits of that section and does not find
reasonable probability of gross negligence or intentional harm, it shall
dismiss the cause of action as to such defendant.

(b) Motion to dismiss defense. A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.

(c) Evidence permitted; immediate trial; motion treated as one for summary judgment. Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion.

(d) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.

(e) Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship. The foregoing sentence shall not apply in any proceeding under subdivision one or two of section seven hundred eleven of the real property actions and proceedings law. The papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed. An objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading.

(f) Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.

(g) Standards for motions to dismiss in certain cases involving public petition and participation. A motion to dismiss based on paragraph seven of subdivision (a) of this section, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion.

(h) Standards for motions to dismiss in certain cases involving licensed architects, engineers, land surveyors or landscape architects. A motion to dismiss based on paragraph seven of subdivision (a) of this rule, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action in which a notice of claim must be served on a licensed architect, engineer, land surveyor or landscape architect pursuant to the provisions of subdivision one of section two hundred fourteen of this chapter, shall be granted unless the party responding to the motion demonstrates that a substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed architect, engineer, land surveyor or landscape architect or such firm as set forth in the notice of claim was negligent and that such performance, conduct or omission was a proximate cause of personal injury, wrongful death or property damage complained of by the claimant or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant a preference in the hearing of such motion.

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