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MOTIONS TO DISMISS IN NEW YORK: A Primer On A Procedural Gatekeeper

A motion to dismiss can be a devastating tactical weapon which, if not handled carefully, may backfire on its wielder. As such, an understanding of the many facets of this device can pay significant dividends (or at least help prevent costly missteps).

The Civil Practice Law and Rules ("CPLR") provides a procedure to bring a motion, before answer, for judgment dismissing one or more causes of action asserted against the party. CPLR § 3211 is the primary section available by which to seek early claim dismissal, though there are a handful of other possibilities (mentioned below). A "cause of action" subject to dismissal under this rule includes counterclaims, cross-claims, and third-party claims.

Although substantive or procedural issues may fall within the ambit of a motion to dismiss, more often than not a court's analysis of a motion to dismiss will be limited to review of "questions of law." A question of law typically involves application of a statutory rule or case authority to undisputed facts (or to facts to which there can be no legitimate dispute). A court will generally loathe getting involved in the interpretation of disputed facts at this early stage of the litigation.

Indeed, the shadow of a question of fact will quickly derail a hopeful motion to dismiss, as will a well-pleaded cause of action. For a variety of reasons, it may not take much to defeat motion to dismiss. If a motion is not properly analyzed and supported, a plaintiff may take shelter within liberal and generous pleading standards afforded to a non-movant, and easily shoot down the motion. Thus, it is essential to give each cause of action careful scrutiny to determine whether there is a legitimate basis for seeking dismissal.

There are several grounds for bringing a motion to dismiss, which include (but are not limited to) the following categories identified in CPLR § 3211(a):

1. documentary evidence;
2. lack of subject matter jurisdiction;
3. lack of capacity;
4. another action pending;
5. prior proceeding, etc.;
6. improper counterclaim;
7. failure to state a cause of action;
8. lack of personal jurisdiction;
9. improper extra-jurisdictional service;
10. failure to join necessary party; and
11. immunity for voluntary non-profit officers.


1. Documentary Evidence
A motion to dismiss may be premised solely upon the existence of documentary evidence. This motion may be based upon the terms of a written contract, judicial records (such as judgments and orders), as well as a wide range of documents reflecting out-of-court transactions such deeds, wills, mortgages, and even written communications. It should be noted however, that an affidavit cannot by itself qualify as "documentary evidence." Generally speaking, however, an affidavit is the most common way of laying foundation for a "document" so that it may be considered by the court for purposes of obtaining a dismissal. The proscription against the use of affidavits in support of a motion to dismiss for legal insufficiency should not apply to a merely foundational affidavit used in connection with documentary evidence. These documents must establish conclusively, as a matter of law, that there is no legitimate claim. That is, the document must provide for a complete defense, leaving no triable issues.

See also: November/December 2011 NYSBA Journal , "CPLR 3211(a)(1) and (a)(7) Dismissal Motions - Pitfalls and Pointers" by John R. Higgitt

2. Lack of Subject Matter Jurisdiction
Lack of subject matter jurisdiction may also serve as a basis for a motion to dismiss. A motion on this basis attacks the court's very power to even hear the matter. Determination of a motion here will likely be determined by reference to the constitution, statutes, and, occasionally, the rules that confer the jurisdiction. Thus, a motion to dismiss for lack of subject matter jurisdiction will be granted where exclusive jurisdiction of the type of claim is given to another court, such as matters subject to administrative determination, claims subject to sovereign immunity, or an area where the legislature has provided for an exclusive remedy as with the Workers' Compensation Law. This objection cannot be waived. Subject matter jurisdiction cannot be acquired by consent, stipulation, waiver, or estoppel. As such, it can serve as a basis for dismissal at any time, even after the answering time has expired or even for the first time on appeal.

3. Lack of Capacity
An action may also be dismissed where the plaintiff lacks the legal capacity to bring the lawsuit. That is, the plaintiff is trying to stand in another party's shoes and does not have the right to do so on their own. Examples of this type of situation include a debtor's attempt to prosecute a claim which is the property of the bankruptcy estate; an heir's attempt to object in probate proceedings; a party's invocation of a statute that does not provide for a private right of action; or a party's attempt to bring an action on behalf of a corporation which has not been authorized by its directors. The court will review such a motion to determine the capacity issue as of the time of service. It will also take plaintiff's allegations with respect to legal capacity as true. It should be noted, however, that capacity is separate and distinct from the issue of jurisdiction. As such, a capacity objection can be waived if not raised by answer or motion.

4. Another Action Pending
The CPLR also protects a defendant from having to fight a legal battle on multiple geographic fronts. It provides that a defendant may bring a motion to dismiss on the ground that there is another action pending between the same parties for the same cause of action which may bar a subsequent action from proceeding. The courts have broad discretion as to how to handle such a situation. It may dismiss the second action, stay of one of the actions, or order consolidation.

In order to invoke this rule, the "other action" must be pending in a New York court, in a federal court within or without New York, or in a court in a sister state. The "other action" must generally also have been commenced first. However, if the two actions are commenced reasonably close together, the court can still dismiss the action before it even though it may have technically been "commenced" first. The filing of a summons with notice alone, however, may not constitute the "commencement" under this rule. Further, a court must determine that the two actions do in fact involve the same parties (at least substantial identity of parties). This objection may waived by failing to raise the issue by way of answer or motion.

5. Prior Proceedings, Etc.
In addition to preventing a defendant from being sued in multiple venues, the CPLR also protects a defendant from being sued multiple times. That is, the CPLR will not permit a plaintiff a second bite at a matter that has already been litigated or settled. As such, a defendant may bring a motion to dismiss where (among other things) a claim may be barred due to (a) res judicata or collateral estoppel, (b) prior arbitration award, (c) discharge in bankruptcy, (d) release, or (e) payment.

An objection premised upon res judicata may be asserted where the prior action was decided "on the merits." The prior ruling must provide a full adjudication after a full and fair opportunity to be heard. If so, then the adjudication extends not only to matters which were decided, but also to all matters which could have been brought. A prior dismissal which was merely the result of noncompliance with an order, however, or the product of some other procedural defect, may not be "on the merits" sufficient to warrant invocation of this rule. Similarly, collateral estoppel applies where material facts have been adjudicated in the prior action. An objection based upon the doctrines of res judicata or collateral estoppel is waived unless raised by answer or motion.

This rule also apples to informal (non-judicial) determinations, such as an award in arbitration. To apply, the arbitration award must be final and not subject to attack. It also applies to parties which may not have been a party to the arbitration so long as the party had a full and fair opportunity to participate. A claim of discharge in bankruptcy also operates as a prior determination sufficient to permit the granting of a motion to dismiss. Determination of this issue will require resort to federal bankruptcy laws. Finally, a party that has settled a prior dispute may not do an end-run around that decision later by bringing a lawsuit. The burden will be upon defendant to demonstrate the existence of a valid release. There must be no question as to the validity (no issues consideration, fraud, duress, etc.) or the scope of the release. This objection has some overlap with a CPLR § 3211(a)(1) objection premised upon "documentary evidence." The best practice is to invoke both CPLR § 3211(a)(1) and CPLR § 3211(a)(5).

Finally, this rule also permits invocation of the "granddaddy" of dismissal grounds: the statute of limitations. If a defendant is able to show that a relevant statute of limitations has expired, then dismissal is automatic. Some difficulty may arise, however, when factual questions are asserted as to accrual of a claim, tolling, or discovery. The existence of expiration of statute may be established by affidavit or documentary evidence. Like the other grounds under CPLR § 3211(a)(5), a statute of limitations objection may be waived if it is not raised by answer or motion.

6. Improper Counterclaim
This rule merely provides that the ammunition available to defendant to attack a claim is also available to a plaintiff to fend off a counterclaim. However, there is at least one important distinction: a plaintiff may not assert lack of personal jurisdiction or improper extra jurisdictional service against a counterclaim since a plaintiff is considered to have already consented to the court's power by bringing the lawsuit in the first place.

7. Failure to State a Claim
One of the staples of defense counsel's practice is an objection based upon the failure of the plaintiff to "state a claim upon which relief may be granted." This objection is designed to place the plaintiff's claim under the microscope. Contrary to what is suggested by the nomenclature of this objection, however, the court's focus will be to flush out whether a claim exists rather than merely whether the plaintiff has formally stated one. The emphasis is on substance, not form. If the plaintiff merely overlooked a technical pleading requirement, a court will freely and liberally grant leave to amend so that the deficiency can be easily corrected.

Unfortunately, the cards are stacked in favor of the plaintiff on this objection. On a motion advancing this basis for dismissal the court will also likely hold defendant to a high burden to specify the precise defects in the complaint. A court will not likely dismiss a claim not specifically listed in the motion itself. Further, if the motion is simply addressed to the entire complaint, a court may deny the entire motion if it finds that just one of the several claims withstands scrutiny. Also, if the motion does not specifically list CPLR § 3211(a)(7) or the magic language, "failure to state a cause of action", the court may not even consider pleading deficiencies in the motion. Finally, the court will also take all factual allegations as true and drawn all reasonable inferences therefrom in favor of the plaintiff.

Even if a defendant manages to successfully navigate these obstacles, and finds a weak claim to attack, the impact of a dismissal will not carry full res judicata impact unless the court invokes CPLR § 3211(c) and explicitly treats it as a summary judgment motion after proper notice. One exception to this rule, however, is where plaintiff's factual allegations are flatly contradicted by documentary evidence. Another exception is where a second motion to dismiss is brought against a complaint which fails to remedy the very defects which resulted in the prior dismissal. In that case, the second dismissal of the amended complaint may be ordered "with prejudice" even though the dismissal is not technically "not on the merits." In addition, a ruling with respect to a particular issue, even if not immediately dispositive of the entire case, may still become "law of the case" and serve as the foundation for a later motion for summary judgment. Significantly, like an objection to subject matter jurisdiction, this objection may be raised at any time. It is not waived by failure to raise by answer or motion.

See also: November/December 2011 NYSBA Journal , "CPLR 3211(a)(1) and (a)(7) Dismissal Motions - Pitfalls and Pointers" by John R. Higgitt

8. Lack of Personal Jurisdiction
This objection challenges the validity of service procedures, identity of the party, or the power of the court to extend its reach to a defendant located outside its jurisdiction. If the court finds a factual issue relating to personal jurisdiction, it may permit limited discovery or order an immediate trial. Factual questions might include the identity of party, the identity of an agent served, as well as whether an alleged business transaction or alleged tortious act occurred within the state. A plaintiff need only make a basic prima facie showing, such as the production of an affidavit of service. Further, an objection to service is waived if it is not raised in an answer or motion. If it is raised an answer, then the defendant will only have 60 days to make a motion or it will be deemed to have waived the objection anyway. Further, as noted above, the assertion of a counterclaim will also automatically waive an objection to personal jurisdiction. The legislature as made it clear that it wants personal jurisdiction issues, if any, resolved early in the case.

9. Flawed Out-of-State Service
This objection is largely an echo of CPLR § 3211(a)(8). The motion must be based on procedurally improper service outside of the state (under either CPLR §§ 314 or

Plaintiff must submit proof of service in opposition to the motion, whether or not it was previously filed with the court. Of course, this objection is also waived if not raised by answer or motion. It is also subject to the 60 day rule noted above.

10. Failure to Join Necessary Party
A defendant may ask the court to dismiss an action because the absence of a party may prevent full adjudication of claims asserted. This objection is commonly referred to as failure to join a "necessary party." A defendant has the option of seeking complete dismissal or having the absent party brought into the litigation. Most defendants opt for complete dismissal. Courts, however, usually opt to for joinder and will likely only order dismissal where the identified "party" is beyond the court's reach. See, CPLR § 1001(b).

The "party" must also be "necessary" in that the litigation cannot proceed in their absence. This is the last of the nonwaivable trinity of objections.

11. Immunity for Voluntary Non-Profit Officers
The legislature has made it clear that it wants to encourage voluntary participation on boards of non-profit entities of the state. Participation by skilled citizens has been deemed to be in the public interest. To this end, it has set up statutory protection under the Not-For-Profit Corporation Law for such voluntary non-profit board members. It essentially creates a presumption that of non-liability unless the plaintiff can show that the defendant may have abused the position in some way or acted in a manner inconsistent with promotion of the public good. A defendant must only make a prima facie showing to win protection of the statute. The burden then shifts to the plaintiff to make an evidentiary showing of a legitimate factual question. However, a defendant must seek protection of the statute immediately by bringing a pre-answer motion. A defense asserted in the answer will be a nullity subject to a motion to strike.

Generally, a plaintiff has no obligation to make an evidentiary showing in support of the complaint. As noted, a plaintiff's allegations are to be taken as true. However, a defendant may submit any evidence which demonstrates that the allegations are false as a matter of law. Either party may submit any evidence that could properly be considered on a motion for summary judgment. This can relate to the substantive aspects of the plaintiff's allegations as well as to allegations which relate to the court's jurisdiction. However, affidavits generally only serve the narrow purpose of remedying defects in a complaint. Further, where the court's evaluation of the evidence goes beyond the pleadings and questions of law, into determination of "genuine" issues of "material" fact, then the Court may either deny the motion, order limited discovery, order a hearing or trial, or deem the motion to be one for summary judgment.

To recap, the following nonwaivable trinity of objections may be raised by a motion at any time or in a pleading at any time that one is permitted:
1. lack of subject matter jurisdiction (CPLR § 3211(a)(2));
2. failure to state a cause of action (CPLR § 3211(a)(7)); and
3. failure to join a necessary party (CPLR § 3211(a)(10)).

All other objections may be waived unless raised by motion or answer:
1. documentary evidence (CPLR § 3211(a)(1));
2. lack of capacity (CPLR § 3211(a)(3));
3. another action pending (CPLR § 3211(a)(4));
4. prior proceeding, etc. (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)(CPLR § 3211(a)(5));
5. improper counterclaim (CPLR § 3211(a)(6));
6. lack of personal jurisdiction (CPLR § 3211(a)(8));
7. improper extra-jurisdictional service (CPLR § 3211(a)(9)); and
8. immunity for voluntary non-profit officers (must be raised in motion)(CPLR § 3211(a)(11)).

With respect to timing, a motion to dismiss or answer must generally be served within 20 or 30 days of service of the summons and complaint, depending on the place and method of service. As noted, a 60 day rule also applies to a motion based upon lack of personal jurisdiction once such a defense has been raised in the answer. Except as to an objection based upon immunity for voluntary non-profit officers under CPLR § 3211(a)(11), all other objections may be either raised in a motion to dismiss or in the answer as affirmative defenses. A nonexclusive listing of possible affirmative defenses can be found in CPLR § 3018(b).

A motion to dismiss automatically extends the time by which the defendant must serve its answer. Further, all discovery in the case is stayed until "determination of the motion." See, CPLR 3214(b). However, if a motion is based solely upon improper service, discovery is not stayed unless the Court orders otherwise. See, CPLR 3214(b). Of course, parties may also stipulate to extend time to answer or move.

Usually, a CPLR § 3211 determination will only have collateral estoppel impact of the issue determined or serve as law of the case as to that issue if the entire matter is not disposed. The following objections, however, may result in res judicata treatment: arbitration and award, collateral estoppel, discharge in bankruptcy, payment, release, and res judicata. The objection of infancy or disability will not preclude a later action when the disability is removed or rectified. As noted above, the granting of a second motion to dismiss for failure to state a cause of action may preclude further litigation if the prior deficiencies again come before the court. If a motion to dismiss is denied, the defendant must serve its answer within 10 days after service of a notice of entry of the order determining the motion.

For an interesting article on the impacts of denials of a motion to dismiss in various contexts see: February 2011 NYSBA Journal , "The Implications of Responding to Pleadings if a Motion to Dismiss Is Denied" by Joseph F. Castiglione

Only one motion to dismiss is permitted under CPLR § 3211(a). See, CPLR § 3211(e). This rule is designed to protect a plaintiff from repeated, or piece-meal, CPLR § 3211(a) motions. In theory, additional motions may be permitted, however, under the nonwaivable grounds of lack of subject matter jurisdiction, failure to state a cause of action, and failure to join a necessary party. It is more likely that such a motion would be brought under CPLR § 3212 for summary judgment, though.

A defendant may amend its answer before the clock runs out on its original response time allotment. See, CPLR § 3025(a).

The amended pleading completely supersedes the original. Most of the objections of CPLR § 3211(a) may be available in response to the amended complaint. Once waived however, a defendant may not be able to revive an objection by asserting it as a defense in an answer to an amended complaint. For example, lack of personal jurisdiction due to improper service cannot be made in response to the plaintiff's amended complaint. There may be some flexibility, however, where the amended complaint itself raises new matters which now render the objection applicable.

It should be noted that CPLR § 205(a) provides a six-month grace period for actions to be refiled after terminations other than a matter dismissed by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits.

When this grace period applies, the plaintiff may commence a new action upon the same transaction or occurrence within six months after the prior termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within the six-month period. A plaintiff may still try to effectuate service, however, without bringing a new suit if the 120 days under CPLR § 306-b have not yet expired. If the case should be dismissed for lack of personal jurisdiction after the statute of limitations has expired, and CPLR § 306-b is no longer available, CPLR § 205(a) will not provide a six months "grace period" for the plaintiff to bring a new lawsuit.

At times it seems that justice may indeed be better (or more effectively) served up cold (or at least delayed). If the is motion to dismiss is vulnerable to attack or needs factual support outside the four corners of the complaint, then the better course may be to answer, preserve all available defenses, and then move for summary judgment as soon as it appears to be appropriate to do so. Many of the CPLR § 3211(a) objections can later serve as the basis for a motion for summary judgment under CPLR § 3212, so long as defenses are preserved in the answer.

A motion for summary judgment under CPLR § 3212, however, is not limited to CPLR § 3211(a) objections or any specified grounds. Unlike a motion to dismiss, a summary judgment motion cannot be made until after issue is joined by service of answer. Generally, a granted motion for summary judgment has res judicata as a decision on the merits. More often than not, a granted motion to dismiss will not be on the merits and will not have res judicata impact. Unlike with a motion to dismiss, the plaintiff's allegations on a motion for summary judgment need no longer be taken as true. Further, once a defendant makes a prima facie showing of entitlement to dismissal on a motion for summary judgment, a plaintiff may not rest upon its bare allegations but must come forward with admissible evidence at least demonstrating a genuine issue of material fact requiring determination by a finder of fact.

Although CPLR § 3211(a) is the most common procedural mechanism for a motion to dismiss, but there are a few limited statutory alternatives, including the following:

1. forum non conveniens under CPLR § 327;
2. failure to serve a complaint demanded under CPLR § 3012(b);
3. failure to comply with disclosure under CPLR § 3126; and
4. failure to prosecute under CPLR § 3216.

A cost-benefit analysis should look at the expense of preparing the motion and the probability of success. Other considerations include the benefit of flushing out the plaintiff's legal theories or obtaining an early favorable position with the court. In addition, one should look at how easily a highlighted defect can be remedied. Courts do not look kindly upon motions which flaunt formality for the sake of formality, especially when the defect is minor in nature and easily corrected. The motion may backfire if the corrected complaint sets forth a persuasive position to the court, and may also result in the inclusion of additional claims the plaintiff had not considered until educated by the defendant's motion. It is often better to preserve all applicable defenses and play those cards on a motion for summary judgment.

Heath J. Szymczak, Esq.

See also: May 2012 NYSBA Journal , "Drafting New York Civil-Litigation Documents: Part XV - Motions to Dismiss" by Gerald Lebovits

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This page contains a single entry from the blog posted on July 29, 2011 2:50 PM.

The previous post in this blog was Revised RJI (Request for Judicial Intervention) Form Released.

The next post in this blog is "Through the Ullmannglass": Third Department Says Tortious Interference with Contract Claim Can be Predicate for Tortious Interference with Prospective Contractual Relations Claim.

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