N.Y. Civil Practice Law & Rules § 3211: Motion to dismiss

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) of

this rule, 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) of this rule 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) of this rule 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 to collect a debt arising out of a consumer

credit transaction where a consumer is a defendant or 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) of this rule is waived if a

party moves on any of the grounds set forth in subdivision (a) of this

rule without raising such objection or if, having made no objection

under subdivision (a) of this rule, he or she does not raise such

objection in the responsive pleading which, in any action to collect a

debt arising out of a consumer credit transaction where a consumer is a

defendant, includes any amended 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) Stay of proceedings and standards for motions to dismiss in

certain cases involving public petition and participation. 1. 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.

2. In making its determination on a motion to dismiss made pursuant to

paragraph one of this subdivision, the court shall consider the

pleadings, and supporting and opposing affidavits stating the facts upon

which the action or defense is based. No determination made by the court

on a motion to dismiss brought under this section, nor the fact of that

determination, shall be admissible in evidence at any later stage of the

case, or in any subsequent action, and no burden of proof or degree of

proof otherwise applicable shall be affected by that determination in

any later stage of the case or in any subsequent proceeding.

3. All discovery, pending hearings, and motions in the action shall be

stayed upon the filing of a motion made pursuant to this section. The

stay shall remain in effect until notice of entry of the order ruling on

the motion. The court, on noticed motion and upon a showing by the

nonmoving party, by affidavit or declaration under penalty of perjury

that, for specified reasons, it cannot present facts essential to

justify its opposition, may order that specified discovery be conducted

notwithstanding this subdivision. Such discovery, if granted, shall be

limited to the issues raised in the motion to dismiss.

4. For purposes of this section, "complaint" includes

"cross-complaint" and "petition", "plaintiff" includes

"cross-complainant" and "petitioner", and "defendant" includes

"cross-defendant" and "respondent."

(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.