2023 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)  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.