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New York Motion to Dismiss

In New York you move to dismiss under CPLR 3211 before your answer is due (20 or 30 days); only one motion.

Introduction

In New York, you challenge a complaint before answering by filing a motion to dismiss under N.Y. C.P.L.R. Rule 3211. It is not called a demurrer. Subdivision (a) lists eleven grounds, including (a)(1) a defense founded on documentary evidence, (a)(5) bars such as statute of limitations, release, payment, res judicata, and collateral estoppel, and (a)(7) failure to state a cause of action, the analog to federal Rule 12(b)(6). The timing rule is strict. A 3211(a) motion must be made before service of the responsive pleading is required, which is the same window as your answer: 20 days after personal in-state service of the summons, or 30 days where service was completed by the methods listed in CPLR 320(a). Only one such pre-answer motion is permitted. Serving the notice of motion before your responsive pleading extends your time to answer until ten days after service of notice of entry of the order. The papers are a Notice of Motion plus a supporting Affirmation or Affidavit and a Memorandum of Law, filed in Supreme Court. New York has no California-style statutory meet-and-confer prerequisite. Miss the window and you lose the one pre-answer motion and must raise these grounds in your answer instead. DocDraft drafts a New York-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The New York vehicle is a motion to dismiss under N.Y. C.P.L.R. Rule 3211, a pre-answer motion. It is not a demurrer like California or Virginia, and not preliminary objections like Pennsylvania. Grounds are enumerated in subdivision (a); timing and waiver are in subdivision (e).

  2. 2

    CPLR 3211(a) lists eleven grounds: (1) a defense founded on documentary evidence; (2) lack of subject matter jurisdiction; (3) lack of legal capacity to sue; (4) another action pending; (5) bars including arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability, payment, release, res judicata, statute of limitations, or statute of frauds; (6) improperly interposed counterclaim; (7) failure to state a cause of action; (8) lack of personal jurisdiction; (9) lack of jurisdiction over service under section 314 or 315; (10) absence of a necessary party; and (11) immunity under section 720-a of the not-for-profit corporation law.

  3. 3

    A 3211(a) motion must be made before service of the responsive pleading is required, which is the same window as the answer: 20 days after personal in-state service of the summons, or 30 days where service was completed by the methods listed in CPLR 320(a). Only one such pre-answer motion is permitted (CPLR 3211(e)).

  4. 4

    Serving a notice of motion under 3211(a) before service of the responsive pleading extends your time to serve that pleading until ten days after service of notice of entry of the order (CPLR 3211(f)/(e)). So the answer clock pauses while the motion is decided and restarts ten days after notice of entry if the motion is denied.

  5. 5

    New York has no statewide statutory meet-and-confer prerequisite for a CPLR 3211 motion. The motion-procedure rule, 22 NYCRR 202.8-a, imposes no pre-filing meet-and-confer step. In the Commercial Division of Supreme Court a pre-motion letter may apply to certain motions under the Commercial Division Rules, so check the assigned part's rules if your case is there.

  6. 6

    The most common ground is CPLR 3211(a)(7), failure to state a cause of action, the New York analog to federal Rule 12(b)(6). It tests whether the complaint, accepting its facts as true, states any legally cognizable claim.

  7. 7

    You file in the Supreme Court of the State of New York, the trial court of general, unlimited original civil jurisdiction, in the court where the action is pending, by e-filing through NYSCEF where applicable. A distinctive New York ground is 3211(a)(1), dismissal on documentary evidence that utterly refutes the complaint, which has no clean federal Rule 12(b) analog.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF __________

---------------------------------------------------------------X [PLAINTIFF NAME], Plaintiff,

        -against-                                            Index No. __________

[DEFENDANT NAME], Defendant. ---------------------------------------------------------------X

NOTICE OF MOTION TO DISMISS (N.Y. C.P.L.R. 3211(a))

PLEASE TAKE NOTICE that, upon the annexed affirmation of [ATTORNEY/PARTY NAME], the accompanying memorandum of law, and all pleadings and proceedings previously had herein, the undersigned will move this Court at the Courthouse located at __________, on ________, 20, at __ o'clock, or as soon thereafter as counsel may be heard, for an order pursuant to N.Y. C.P.L.R. 3211(a) dismissing the complaint, together with such other and further relief as the Court deems just and proper.

The exact relief sought is an order dismissing the complaint in its entirety on the grounds set forth below.

GROUNDS FOR THE MOTION

This motion is made before service of a responsive pleading is required and is the only motion made under C.P.L.R. 3211(a). The complaint should be dismissed on the following ground(s) under C.P.L.R. 3211(a):

[ ] (a)(1) a defense is founded upon documentary evidence; [ ] (a)(5) the cause of action may not be maintained because of [statute of limitations / release / payment / res judicata / collateral estoppel / arbitration and award / discharge in bankruptcy / statute of frauds]; [ ] (a)(7) the pleading fails to state a cause of action; [ ] (a)(8) the court has not jurisdiction of the person of the defendant; [ ] other ground under C.P.L.R. 3211(a): __________.

MEMORANDUM OF LAW

A supporting memorandum of law accompanies this motion. The notice of motion and the concluding section of the memorandum specify the exact relief sought, and copies of all pleadings are attached, as required by 22 NYCRR 202.8-a. The memorandum of law in chief is limited to 7,000 words under 22 NYCRR 202.8-b, and a certification of compliance is attached to the end of the document.

[Statement of facts. Argument applying C.P.L.R. 3211(a) to those facts. On an (a)(1) motion, the documentary evidence relied upon is annexed. On an (a)(7) motion, the argument is that the complaint, accepting its facts as true, fails to state a legally cognizable cause of action.]

WHEREFORE, Defendant respectfully requests that the Court enter an order dismissing the complaint pursuant to C.P.L.R. 3211(a), together with such other and further relief as the Court deems just and proper.

Dated: __________, New York ________, 20

                                    ______________________________
                                    [ATTORNEY/PARTY NAME]
                                    [Address]
                                    [Telephone / Email]

TO: [PLAINTIFF / PLAINTIFF'S COUNSEL]

AFFIRMATION / AFFIDAVIT OF SERVICE

I affirm under penalty of perjury that on ________, 20, I served a copy of the foregoing Notice of Motion, Affirmation, and Memorandum of Law upon [PLAINTIFF / PLAINTIFF'S COUNSEL] at [address] by [NYSCEF e-filing / mail / personal delivery].

                                    ______________________________
                                    [NAME]

New York Requirements for Motion to Dismiss

Move before the responsive pleading is due

Under C.P.L.R. 3211(e), a motion on subdivision (a) grounds must be made before service of the responsive pleading is required, which is the same window as the answer: 20 days after personal in-state service of the summons, or 30 days where service was completed by the methods listed in C.P.L.R. 320(a).

File only one pre-answer 3211(a) motion

Under C.P.L.R. 3211(e), no more than one motion on subdivision (a) grounds is permitted. Raise all available (a) grounds in that single motion, because you cannot make a second pre-answer 3211(a) motion.

Select your grounds under C.P.L.R. 3211(a)

C.P.L.R. 3211(a) enumerates eleven grounds, including (1) a defense founded upon documentary evidence; (5) bars such as statute of limitations, release, payment, res judicata, collateral estoppel, arbitration and award, discharge in bankruptcy, or statute of frauds; (7) failure to state a cause of action; and (8) lack of personal jurisdiction.

Use (a)(7) for failure to state a cause of action

C.P.L.R. 3211(a)(7) is the failure-to-state-a-cause-of-action ground, the New York analog to federal Rule 12(b)(6). It tests whether the complaint, accepting its facts as true, states a legally cognizable claim.

File the Notice of Motion, Affirmation or Affidavit, and Memorandum of Law

Under 22 NYCRR 202.8-a, the notice of motion and a concluding section of the memorandum of law must specify the exact relief sought, and copies of all pleadings must be submitted as part of the motion papers, especially on C.P.L.R. 3211 and 3212 motions.

Stay within the 7,000-word memorandum cap

Under 22 NYCRR 202.8-b, computer-prepared affidavits, affirmations, briefs, and memoranda of law in chief are limited to 7,000 words each, and reply papers to 4,200 words; typewritten or handwritten papers are limited to 20 pages in chief and 10 pages in reply. The count excludes the caption, table of contents, table of authorities, and signature block, and a certification of compliance must be attached.

Account for the extended answer time if the motion is denied

Under C.P.L.R. 3211(f)/(e), serving the notice of motion before the responsive pleading extends your time to serve that pleading until ten days after service of notice of entry of the order. If the motion is denied, your time to answer runs from that ten-day mark.

File in Supreme Court and serve the papers

File in the Supreme Court of the State of New York, the trial court of general, unlimited original civil jurisdiction, in the court where the action is pending, by e-filing through NYSCEF where applicable. Serve the notice of motion and supporting papers on the opposing party.

Frequently Asked Questions

File a motion to dismiss under N.Y. C.P.L.R. Rule 3211 in the court where the action is pending, typically the Supreme Court, by e-filing through NYSCEF where applicable. The papers are a Notice of Motion plus a supporting Affirmation or Affidavit and a Memorandum of Law. The notice of motion and a concluding section of the memorandum must specify the exact relief sought, and copies of all pleadings must be attached.

A motion to dismiss on CPLR 3211(a) grounds must be made before service of the responsive pleading is required, which is the same window as the answer: 20 days after personal in-state service of the summons, or 30 days where service was completed by the methods listed in CPLR 320(a). Only one such pre-answer motion is permitted.

CPLR 3211(a) lists eleven grounds, including a defense founded on documentary evidence (1), lack of subject matter jurisdiction (2), lack of capacity to sue (3), another action pending (4), bars such as statute of limitations, release, payment, res judicata, and collateral estoppel (5), failure to state a cause of action (7), and lack of personal jurisdiction (8). Ground (7) is the failure-to-state-a-cause-of-action analog to federal Rule 12(b)(6).

New York has no statewide statutory meet-and-confer prerequisite for a CPLR 3211 motion. The motion-procedure rule, 22 NYCRR 202.8-a, imposes no pre-filing meet-and-confer step, unlike California. In the Commercial Division of Supreme Court a pre-motion letter may apply to certain motions, so check the assigned part's rules if your case is there.

Serving a notice of motion under CPLR 3211(a) before the responsive pleading extends your time to serve that pleading until ten days after service of notice of entry of the order. So if the motion is denied, your time to answer runs from ten days after notice of entry. Because only one pre-answer motion is permitted, remaining defenses are raised in the answer.

You file in the Supreme Court of the State of New York, the trial court of general, unlimited original civil jurisdiction, in the court where the action is pending. County Court and the New York City Civil, District, and City courts hear cases within their monetary limits. Filing is done by e-filing through NYSCEF where applicable.