NY CPLR § 3211 (2021)
2021 New York Laws CVP - Civil Practice Law and Rules Article 32 - Accelerated Judgment R3211 - 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), 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.   * NB Effective until May 7, 2022   * (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.    * NB Effective May 7, 2022  (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.