N.Y. C.P.L.R. 3211

Rule 3211. Motion to dismiss. (a) Motion to dismiss cause of action.\nA party may move for judgment dismissing one or more causes of action\nasserted against him on the ground that:\n 1. a defense is founded upon documentary evidence; or\n 2. the court has not jurisdiction of the subject matter of the cause\nof action; or\n 3. the party asserting the cause of action has not legal capacity to\nsue; or\n 4. there is another action pending between the same parties for the\nsame cause of action in a court of any state or the United States; the\ncourt need not dismiss upon this ground but may make such order as\njustice requires; or\n 5. the cause of action may not be maintained because of arbitration\nand award, collateral estoppel, discharge in bankruptcy, infancy or\nother disability of the moving party, payment, release, res judicata,\nstatute of limitations, or statute of frauds; or\n 6. with respect to a counterclaim, it may not properly be interposed\nin the action; or\n 7. the pleading fails to state a cause of action; or\n 8. the court has not jurisdiction of the person of the defendant; or\n 9. the court has not jurisdiction in an action where service was made\nunder section 314 or 315; or\n 10. the court should not proceed in the absence of a person who should\nbe a party.\n 11. the party is immune from liability pursuant to section seven\nhundred twenty-a of the not-for-profit corporation law. Presumptive\nevidence of the status of the corporation, association, organization or\ntrust under section 501 (c) (3) of the internal revenue code may consist\nof production of a letter from the United States internal revenue\nservice reciting such determination on a preliminary or final basis or\nproduction of an official publication of the internal revenue service\nlisting the corporation, association, organization or trust as an\norganization described in such section, and presumptive evidence of\nuncompensated status of the defendant may consist of an affidavit of the\nchief financial officer of the corporation, association, organization or\ntrust. On a motion by a defendant based upon this paragraph the court\nshall determine whether such defendant is entitled to the benefit of\nsection seven hundred twenty-a of the not-for-profit corporation law or\nsubdivision six of section 20.09 of the arts and cultural affairs law\nand, if it so finds, whether there is a reasonable probability that the\nspecific conduct of such defendant alleged constitutes gross negligence\nor was intended to cause the resulting harm. If the court finds that the\ndefendant is entitled to the benefits of that section and does not find\nreasonable probability of gross negligence or intentional harm, it shall\ndismiss the cause of action as to such defendant.\n (b) Motion to dismiss defense. A party may move for judgment\ndismissing one or more defenses, on the ground that a defense is not\nstated or has no merit.\n (c) Evidence permitted; immediate trial; motion treated as one for\nsummary judgment. Upon the hearing of a motion made under subdivision\n(a) or (b), either party may submit any evidence that could properly be\nconsidered on a motion for summary judgment. Whether or not issue has\nbeen joined, the court, after adequate notice to the parties, may treat\nthe motion as a motion for summary judgment. The court may, when\nappropriate for the expeditious disposition of the controversy, order\nimmediate trial of the issues raised on the motion.\n (d) Facts unavailable to opposing party. Should it appear from\naffidavits submitted in opposition to a motion made under subdivision\n(a) or (b) that facts essential to justify opposition may exist but\ncannot then be stated, the court may deny the motion, allowing the\nmoving party to assert the objection in his responsive pleading, if any,\nor may order a continuance to permit further affidavits to be obtained\nor disclosure to be had and may make such other order as may be just.\n (e) Number, time and waiver of objections; motion to plead over. At\nany time before service of the responsive pleading is required, a party\nmay move on one or more of the grounds set forth in subdivision (a) of\nthis rule, and no more than one such motion shall be permitted. Any\nobjection or defense based upon a ground set forth in paragraphs one,\nthree, four, five and six of subdivision (a) of this rule is waived\nunless raised either by such motion or in the responsive pleading. A\nmotion based upon a ground specified in paragraph two, seven or ten of\nsubdivision (a) of this rule may be made at any subsequent time or in a\nlater pleading, if one is permitted; an objection that the summons and\ncomplaint, summons with notice, or notice of petition and petition was\nnot properly served is waived if, having raised such an objection in a\npleading, the objecting party does not move for judgment on that ground\nwithin sixty days after serving the pleading, unless the court extends\nthe time upon the ground of undue hardship. The foregoing sentence shall\nnot apply in any proceeding to collect a debt arising out of a consumer\ncredit transaction where a consumer is a defendant or under subdivision\none or two of section seven hundred eleven of the real property actions\nand proceedings law. The papers in opposition to a motion based on\nimproper service shall contain a copy of the proof of service, whether\nor not previously filed. An objection based upon a ground specified in\nparagraph eight or nine of subdivision (a) of this rule is waived if a\nparty moves on any of the grounds set forth in subdivision (a) of this\nrule without raising such objection or if, having made no objection\nunder subdivision (a) of this rule, he or she does not raise such\nobjection in the responsive pleading which, in any action to collect a\ndebt arising out of a consumer credit transaction where a consumer is a\ndefendant, includes any amended responsive pleading.\n (f) Extension of time to plead. Service of a notice of motion under\nsubdivision (a) or (b) before service of a pleading responsive to the\ncause of action or defense sought to be dismissed extends the time to\nserve the pleading until ten days after service of notice of entry of\nthe order.\n (g) Stay of proceedings and standards for motions to dismiss in\ncertain cases involving public petition and participation. 1. A motion\nto dismiss based on paragraph seven of subdivision (a) of this section,\nin which the moving party has demonstrated that the action, claim, cross\nclaim or counterclaim subject to the motion is an action involving\npublic petition and participation as defined in paragraph (a) of\nsubdivision one of section seventy-six-a of the civil rights law, shall\nbe granted unless the party responding to the motion demonstrates that\nthe cause of action has a substantial basis in law or is supported by a\nsubstantial argument for an extension, modification or reversal of\nexisting law. The court shall grant preference in the hearing of such\nmotion.\n 2. In making its determination on a motion to dismiss made pursuant to\nparagraph one of this subdivision, the court shall consider the\npleadings, and supporting and opposing affidavits stating the facts upon\nwhich the action or defense is based. No determination made by the court\non a motion to dismiss brought under this section, nor the fact of that\ndetermination, shall be admissible in evidence at any later stage of the\ncase, or in any subsequent action, and no burden of proof or degree of\nproof otherwise applicable shall be affected by that determination in\nany later stage of the case or in any subsequent proceeding.\n 3. All discovery, pending hearings, and motions in the action shall be\nstayed upon the filing of a motion made pursuant to this section. The\nstay shall remain in effect until notice of entry of the order ruling on\nthe motion. The court, on noticed motion and upon a showing by the\nnonmoving party, by affidavit or declaration under penalty of perjury\nthat, for specified reasons, it cannot present facts essential to\njustify its opposition, may order that specified discovery be conducted\nnotwithstanding this subdivision. Such discovery, if granted, shall be\nlimited to the issues raised in the motion to dismiss.\n 4. For purposes of this section, "complaint" includes\n"cross-complaint" and "petition", "plaintiff" includes\n"cross-complainant" and "petitioner", and "defendant" includes\n"cross-defendant" and "respondent."\n (h) Standards for motions to dismiss in certain cases involving\nlicensed architects, engineers, land surveyors or landscape architects.\nA motion to dismiss based on paragraph seven of subdivision (a) of this\nrule, in which the moving party has demonstrated that the action, claim,\ncross claim or counterclaim subject to the motion is an action in which\na notice of claim must be served on a licensed architect, engineer, land\nsurveyor or landscape architect pursuant to the provisions of\nsubdivision one of section two hundred fourteen of this chapter, shall\nbe granted unless the party responding to the motion demonstrates that a\nsubstantial basis in law exists to believe that the performance, conduct\nor omission complained of such licensed architect, engineer, land\nsurveyor or landscape architect or such firm as set forth in the notice\nof claim was negligent and that such performance, conduct or omission\nwas a proximate cause of personal injury, wrongful death or property\ndamage complained of by the claimant or is supported by a substantial\nargument for an extension, modification or reversal of existing law. The\ncourt shall grant a preference in the hearing of such motion.\n