N.Y. C.P.L.R. § 3211

On a CPLR 3211 motion to dismiss, courts liberally construe the complaint, presume its factual allegations true, and give them every favorable inference.

Ruiz v. Lenox Hill Hospital · filed 2017-01-19

Liberally construing the complaint, presuming its factual allegations to be true, and giving the allegations every favorable inference, as we must on a CPLR 3211 motion to dismiss ... plaintiff has adequately pleaded a claim for retaliatory termination in violation of Labor Law § 740 as against the hospital and corporate defendants.

On a motion to dismiss for failure to state a cause of action, a court may consider a plaintiff’s affidavits to remedy defects in the complaint and asks whether the plaintiff has a cause of action.

INGUTTI, FREDERICK v. ROCHESTER GENERAL HOSPITAL · filed 2016-12-23(a)(7)

In reviewing a motion under CPLR 3211 (a) (7), a court may freely consider affidavits submitted by plaintiffs to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635), and “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

On a CPLR 3211 motion to dismiss, the court accepts the plaintiff’s allegations as true when deciding whether they state a claim.

Trapp-White v. Fountain · filed 2017-02-07

Accepting plaintiff’s allegations as true on this motion to dismiss pursuant to CPLR 3211 they sufficiently state a legal malpractice claim (see Lappin v Greenberg, 34 AD3d 277 [1st Dept 2006]).

On a motion to dismiss for failure to state a cause of action, immunity defenses are premature; defendants should plead them in an answer and then seek summary judgment with supporting evidence.

Radiation Oncology Services of Central New York, P.C. v. Our Lady of Lourdes Memorial Hospital, Inc. · filed 2017-03-16(a)(7)

However, we find that all of these claims constitute affirmative defenses which, in the context of a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, are premature.

On a CPLR 3211(a)(7) motion to dismiss an article 78 petition, the petition’s allegations are deemed true and receive every favorable inference.

GILBERT, ALFRED G. v. PLANNING BOARD OF TOWN OF IRONDEQUO · filed 2017-03-24(a)(7)

“In considering a motion to dismiss a CPLR article 78 proceeding pursuant to CPLR 3211 (a) (7) and 7804 (f), all of the allegations in the petition are deemed to be true and are afforded the benefit of every favorable inference” (Matter of Eastern Oaks Dev., LLC v Town of Clinton, 76 AD3d 676, 678; see Leon v Martinez, 84 NY2d 83, 87-88; Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 94 AD3d 997, 1000-1001, lv dismissed 19 NY3d 951).

On a CPLR 3211 motion to dismiss, the court must accept the complaint’s allegations as true and give the plaintiff every favorable inference; absent a conclusive document, unsupported allegations and the defendant’s denials do not warrant dismissal.

Goldin v. TAG Virgin Islands, Inc. · filed 2017-04-11

In light of the principles that, on a motion to dismiss pursuant to CPLR 3211, the facts alleged in the complaint must be accepted as true and the plaintiff afforded every favorable inference and that, in the absence of a conclusive document, neither the lack of evidentiary submissions to support the plaintiff’s claims nor the defendant’s denials are dispositive (see Leon v Martinez, 84 NY2d 83 [1994]), the motion court erred in dismissing the complaint in its entirety.

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, it asks whether the plaintiff has a cause of action, rather than whether the complaint states one.

Coe v. Toyota Motor North America, Inc. · filed 2017-05-03(a)(7)

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Leon v Martinez, 84 NY2d at 88; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a motion to dismiss a foreclosure complaint for lack of standing, the moving defendant bears the initial burden of establishing the plaintiff’s lack of standing as a matter of law.

Wells Fargo Bank, N.A. v. Archibald · filed 2017-05-03(a)

On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law (see U.S. Bank, N.A. v Noble, 144 AD3d 786, 787 [2016]; U.S. Bank N.A. v Guy, 125 AD3d at 847; HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]).

When a court considers evidence on a motion to dismiss without converting it to summary judgment, it asks whether the plaintiff has a cause of action; dismissal requires showing that a claimed material fact is not a fact and that no significant dispute remains about it.

Aviaev v. LT · filed 2017-05-03(a)(7)

Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Fishberger v Voss, 51 AD3d 627, 628 [2008]).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s factual allegations and reasonable inferences as true.

Spec Simple, Inc. v. Designer Pages Online LLC · filed 2017-05-10

On a motion to dismiss, the court must accept as true the facts alleged in the complaint as well as all reasonable inferences that may be gleaned from those facts.

On an unconverted motion to dismiss under § 3211(a)(7), affidavits cannot be used to determine whether the pleading has evidentiary support.

Kenyon & Kenyon LLP v. SightSound Technologies, LLC · filed 2017-06-13(a)(7)

The motion court erred in granting defendants’ CPLR 3211 (a) (7) motion to dismiss, which was never converted to a motion for summary judgment pursuant to CPLR 3211 (c), on the basis of the averments in their supporting affidavit (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976] [“affidavits received on an unconverted motion to dismiss for failure to state a cause of action are not to be examined for the purpose of determining whether there is evidentiary support for the pleading”]).

On a CPLR 3211(a) motion, the court accepts the complaint’s facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Cement Masons Local 780 Pension Fund v. Schleifer · filed 2017-06-28(a)

On a motion to dismiss pursuant to CPLR 3211 (a), the court must "accept the facts alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory."

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, it may dismiss if the evidence shows that a material fact alleged by the plaintiff is not a fact and no significant dispute remains about it.

Mizrahi v. US Bank, National Ass'n · filed 2017-12-06(a)(7)

Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sposato v Paboojian, 110 AD3d at 979; Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d at 574-575).

Section 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim.

Sims v. Prom Realty Co., LLC · filed 2018-04-25(a)(1)

"A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim' ( Fontanetta v John Doe 1, 73 AD3d 78, 83, quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383; see Leon v Martinez, 84 NY2d 83, 88; Guido v Orange Regional Med. Ctr., 102 AD3d 828, 830). ... Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.

When a court considers evidence on a motion to dismiss without converting it to summary judgment, it asks whether the plaintiff has a cause of action and may dismiss only if the evidence eliminates any significant dispute over a claimed material fact.

Matter of Chet's Garage, Inc. v. Village of Goshen · filed 2018-05-02(a)(7)

With respect to the second cause of action, where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ( see Leon v Martinez , 84 NY2d 83, 88; Guggenheimer v Ginzburg , 43 NY2d 268, 275).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

Golia v. Vieira · filed 2018-06-20(a)(1)

" To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" ... Accordingly, the Supreme Court should have granted those branches of LICH's motion which were pursuant to CPLR 3211(a)(1) to dismiss the first and second causes of action in the amended complaint insofar as asserted against it.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense to the claim.

Bratge v. Simons · filed 2018-12-21(a)(1)

In addition, the documentary evidence establishes that defendants merely "furnished information to law enforcement authorities, who then exercised their own judgment in determining whether they should arrest and file criminal charges against plaintiff. It is well settled that such actions by a civilian complainant . . . do not render the complainant liable for . . . malicious prosecution" ( Quigley v City of Auburn , 267 AD2d 978, 980 [4th Dept 1999]; see also Barrett v Watkins , 82 AD3d 1569, 1572 [3d Dept 2011]). Consequently, the court properly dismissed the second cause of action pursuant to CPLR 3211 (a) (1).

Section 3211(a)(7) permits consideration of evidentiary material that can change the inquiry from whether the complaint states a cause of action to whether the plaintiff has one.

Kaplan v. Conway & Conway · filed 2019-06-06(a)(7)

Contrary to plaintiffs' contention, the motion court properly considered the emails submitted by defendants in dismissing the complaint ( Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc. , 115 AD3d 128, 135 [1st Dept 2014]). By considering this evidentiary material, the standard morphed from whether plaintiffs stated a cause of action to whether they had one ( id. ). Thus, to the extent the motion court decided the motion on the merits, it properly dismissed the complaint on the merits ( cf. Komolov v Segal , 96 AD3d 513 [1st Dept 2012]).

Under CPLR 3211(a)(7), evidentiary material submitted with a motion to dismiss can conclusively establish that the plaintiff has no cause of action.

Mees v. Buiter · filed 2020-09-30(a)(7)

Furthermore, under the circumstances of this case, the evidentiary material submitted by the defendant in support of his motion conclusively established that the plaintiff has no cause of action against him to recover damages for defamation based on his alleged statements to the police on or about that date ( see CPLR 3211[a][7]; Guggenheimer v Ginzburg , 43 NY2d 268, 275; Pincus v Wells , 35 AD3d 569, 570-571).

When evidence is considered on a motion to dismiss for failure to state a cause of action, it can establish that a material allegation is not a fact at all.

Kastin v. GEICO Gen. Ins. Co. · filed 2021-01-13(a)(7)

Here, the evidentiary material submitted in support of the defendant's motion conclusively established that the plaintiff's allegation that the defendant "refused to make payment" under the subject policy was not a fact at all ( see McKee v McKee , 171 AD3d 909, 911). Thus, the plaintiff failed to state a cause of action alleging breach of contract.

On a motion to dismiss under CPLR 3211(a)(7), the court may consider evidentiary material submitted by the defendant.

Cordell Marble Falls, LLC v. Kelly · filed 2021-02-10(a)(7)

"A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" ( Sokol v Leader , 74 AD3d 1180, 1181; see CPLR 3211[c]).

On a CPLR 3211(a)(7) motion, the court may consider a letter attached to the complaint, but dismissal is unwarranted unless the letter conclusively establishes that the plaintiff has no cause of action.

Pottorff v. Centra Fin. Group, Inc. · filed 2021-03-19(a)(7)

Further, although we agree with defendants that the court erred in refusing to consider the letter in support of that part of their motion seeking dismissal of the fraud causes of action pursuant to CPLR 3211 (a) (7), we nevertheless conclude that dismissal is not warranted inasmuch as the letter does not "establish conclusively that . . . plaintiff has no cause of action" ( Jeanty v State of New York , 175 AD3d 1073, 1074 [4th Dept 2019], lv denied 34 NY3d 912 [2020] [internal quotation marks omitted]; see generally Liberty Affordable Hous., Inc. v Maple Ct. Apts. , 125 AD3d 85, 88-91 [4th Dept 2015]).

On a motion to dismiss under section 3211(a)(7), affidavits and other evidence can warrant dismissal if they conclusively establish that the plaintiff has no cause of action.

Karla W. v. Carlisha K.M. · filed 2021-04-30(a)(7)

"It is well established that affidavits and other evidentiary materials are admissible to support a motion to dismiss pursuant to CPLR 3211 (a) (7) . . . , and it is equally well established that such affidavits and materials will warrant dismissal under that provision if they establish conclusively that [the] plaintiff has no cause of action" ( Jeanty v State of New York , 175 AD3d 1073, 1074 [4th Dept 2019], lv denied 34 NY3d 912 [2020] [internal quotation marks omitted]). Contrary to plaintiff's contention, defendants' submissions on their motion, including the affidavit of the executive director of plant services and school planning of the Buffalo Public Schools, established conclusively that plaintiff has no cause of action.

A court may consider documentary evidence on a CPLR 3211(a)(7) motion even when the defendant has waived a CPLR 3211(a)(1) motion.

White Rock Ins. Co. PCC Ltd. v. Lloyd's Syndicate 4242 · filed 2022-02-15(a)(7)

Even though defendant waived the right to make a CPLR 3211(a)(1) motion ( see M & E 73-75 LLC v 57 Fusion LLC, 189 AD3d 1, 6 [1st Dept 2020], lv dismissed 36 NY3d 1086 [2021]), we may nevertheless consider documentary evidence on a CPLR 3211(a)(7) motion ( see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 133-135 & n 4 [1st Dept 2014]).

Under CPLR 3211(a)(7), evidence submitted with a motion to dismiss warrants dismissal when it conclusively disproves a material fact claimed by the plaintiff.

Scarlett-Brown v. Pilgrim Baptist Church, Inc. · filed 2022-08-17(a)(7)

A defendant will succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) where the evidence submitted in support of the motion shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding it ( see Q & O Estates Corp. v US Bank Trust Nat'l Assoc. , 175 AD3d 1337, 1338).

Under CPLR 3211(a)(7), affidavits disputing the complaint do not support dismissal unless they conclusively establish that the plaintiff has no cause of action.

Hymowitz v. Nguyen · filed 2022-10-26(a)(7)

While the defendants, in their affidavits submitted in support of the motion to dismiss, dispute whether Hymowitz was an employee, or whether they agreed to compensate the plaintiffs, these submissions were insufficient to conclusively establish that the plaintiffs have no cause of action for breach of contract ( see Francisco v Kiara Foods, Inc. , 197 AD3d 563, 565; Doe v Ascend Charter Schs. , 181 AD3d 648, 650).

When a court considers evidence on a motion to dismiss without converting it to summary judgment, the question is whether the plaintiff has a cause of action, not merely whether the complaint states one.

Langley v. Melville Fire Dist. · filed 2023-02-08(a)(7)

However, the court clearly considered evidentiary submissions in determining the defendants' motion. Therefore, the proper standard to have applied in determining the defendants' motion was whether the plaintiff had a cause of action against the defendants, not whether he stated one against them in the amended complaint.

On a motion to dismiss for failure to state a cause of action, courts may consider evidence outside the pleading to determine whether the claimant has a cause of action.

Matter of Riverkeeper, Inc. v. New York City Dept. of Envtl. Protection · filed 2023-03-29(a)(7)

On a motion pursuant to CPLR 3211(a)(7), "[c]ourts may consider extrinsic evidence outside of the pleading's four corners to help determine whether the pleading party has a cause of action, as distinguished from whether the pleading simply states a cause of action" ( Matter of Madden v Village of Tuxedo Park , 192 AD3d 802, 804).

When a court considers evidence on a CPLR 3211(a) motion, it asks whether the plaintiff has a cause of action, rather than whether the complaint states one.

Parpounas v. Ohagan · filed 2023-05-17(a)

Where, as here, evidentiary material is considered on a CPLR 3211(a) motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275).

On a CPLR 3211(a)(7) motion, an affidavit may cure a complaint's failure to allege cognizable pecuniary damage.

Stevens v. Wheeler · filed 2023-05-18(a)(7)

Plaintiffs' legal malpractice cause of action should not have been dismissed under CPLR 3211 (a) (1) or CPLR 3211 (a) (7) ( see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer , 8 NY3d 438, 442 [2007]). ... Although the complaint does not allege any cognizable pecuniary damage to decedent's estate, plaintiff Hardie Stevens's affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees ( see Estate of Schneider v Finmann , 15 NY3d 306, 309-310 [2010]; Rudolf , 8 NY3d at 443; Leon v Martinez , 84 NY2d 83, 88 [1994]).

On a motion under CPLR 3211(a)(7), a court may consider a defendant's evidence; if it does, the question is whether the plaintiff has a cause of action.

Mera v. New York City Health & Hosps. Corp. · filed 2023-10-04(a)(7)

"'A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)'" ( Cordell Marble Falls, LLC v Kelly , 191 AD3d 760, 761-762, quoting Sokol v Leader , 74 AD3d 1180, 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'" ( Sokol v Leader , 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg , 43 NY2d 268, 275; see Cordell Marble Falls, LLC v Kelly , 191 AD3d at 762).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when it utterly refutes the plaintiff's allegations, and CPLR 3211(d) does not require a plaintiff, before discovery, to identify which defendant allegedly acted.

JD2 Realty Mgt. LLC v. Evojets LLC · filed 2023-11-02(a)(1), (d)

The affidavit from an employee at defendant My Jet Saver and Evojets' counsel's affirmation averring that the delay in plaintiff's return flight was due to a mechanical issue with defendant My Jet Saver's plane were not documentary evidence within the meaning of CPLR 3211(a)(1), and were insufficient to utterly refute plaintiff's allegation that one or both defendants intentionally rebooked plaintiff's flight to serve a higher-paying customer ( see e.g. Mamoon v Dot Net Inc. , 135 AD3d 656, 657 [1st Dept 2016]). ... Nor was plaintiff required, pre-discovery, to specify which defendant allegedly rebooked the flight (CPLR 3211[d]; see e.g. Pappas v Pilevsky , 225 AD2d 394, 394 [1st Dept 1996]).

On a CPLR 3211(a)(7) motion, evidence may establish conclusively that the plaintiff has no cause of action and warrant dismissal.

Van Ostrand v. Latham · filed 2023-12-22(a)(7)

We conclude the court properly dismissed the complaint because defendant's evidentiary submissions and plaintiff's admissions to them conclusively established that she has no cause of action for fraud inasmuch as she could not have justifiably relied on the alleged fraudulent representations ( see generally Suchow , 157 AD3d at 1016-1017; cf. Kumar v Kumar , 96 AD3d 1323, 1326 [3d Dept 2012]).

On a CPLR 3211(a)(7) motion, the court may consider documentary evidence that flatly contradicts a claim; when a defendant submits documentary evidence, the inquiry shifts to whether the plaintiff has a cause of action.

Glenmede Trust Co., N.A. v. Infinity Q Capital Mgt. LLC · filed 2024-01-31(a)(7)

Rather, the motion is limited to failure to state a cause of action under CPLR 3211(a)(7). Nevertheless, the court may consider documentary evidence where it flatly contradicts the plaintiff’s cause of action (see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 134-35 [1st Dept 2014]). When a defendant submits documentary evidence, the standard shifts from “whether the plaintiff stated a cause of action to whether it has one” (id. at 135 [internal citations and quotation marks omitted]; Kaplan v Conway & Conway, 173 AD3d 452, 453 [1st Dept 2019] [finding that the motion court “properly considered the emails submitted by defendants in dismissing the complaint”]). Therefore, the court will consider the documentary evidence that EisnerAmper has submitted.

On a motion under section 3211(a)(7), the court may consider documentary evidence and dismiss a claim if that evidence flatly rejects it.

Glenmede Trust Co., N.A. v. Infinity Q Capital Mgt. LLC · filed 2024-03-13(a)(7)

Nevertheless, dismissal may be appropriate based on documentary evidence where the documentary evidence "flatly reject[s]" the plaintiffs cause of action (see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 134-135 [ I st Dept 2014]).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion, it asks whether the plaintiff has a cause of action and should not dismiss while a significant dispute remains over a claimed material fact.

Elco v. Aguiar · filed 2024-04-03(a)(7)

Where, as here, "evidentiary material is considered by the court on a motion pursuant to CPLR 3211(a)(7), the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate" ( id. at 794-795 [internal quotation marks omitted]).

For a CPLR 3211(a)(1) motion, affidavits, deposition testimony, and letters are not documentary evidence.

KB DST Borrower, LLC v. Knights Hill Ireland II DAC · filed 2024-06-26(a)(1)

However, "neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)" ( Soroush v Citimortgage, Inc. , 161 AD3d 1124, 1126 [2d Dept 2018]).

Section 3211(a)(7) permits dismissal when exhibits attached to the complaint conclusively disprove a material alleged fact and no significant dispute remains about it.

Matter of McCrory v. Village of Mamaroneck Bd. of Trustees · filed 2024-08-28(a)(7)

Further, a motion to dismiss pursuant to CPLR 3211(a)(7) "may be granted when exhibits attached to the complaint conclusively establish[ ] that a material fact as claimed by the pleader to be one is not a fact at all and that no significant dispute exists regarding it" ( McMahan v McMahan , 131 AD3d 593, 594 [internal quotation marks omitted]; see Roman Catholic Diocese [*4]of Brooklyn, N.Y. v Christ the King Regional High Sch. , 149 AD3d 994, 995; Paino v Kaieyes Realty, LLC , 115 AD3d 656, 657). ... Under these circumstances, the Supreme Court correctly determined that the petitioner's speculative and conclusory allegation was flatly contradicted by the meeting minutes and that she has no cause of action alleging a violation of the Open Meetings Law ( see Matter of Young v Board of Appeals of Inc. Vil. of Garden City , 194 AD2d 796; see also Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist. , 202 AD3d at 1458).

Subsequent witness testimony does not warrant dismissal merely because it may be inconsistent with the complaint.

Travelers Cas. & Sur. Co. v. Vale Ltd. · filed 2024-09-09(e)

... Awitness' subsequent testimony, even if somehow inconsistent, does not warrant dismissal pursuant to CPLR 3211 ( e) under the circumstances.

On a motion to dismiss under § 3211(a)(7), a movant’s extrinsic evidence can support dismissal only if it conclusively disproves an alleged fact.

Voss v. Mandak Veterinary Servs. · filed 2024-09-30(a)(7)

While a court may under limited circumstances consider extrinsic evidence from the movant, such evidence may not fonn the basis for dismissal unless it ··conclusively establishes the falsity of an alleged fact° (Gray v Schenectady Citv chool Dist., 86 AD3d 771, 772 [3d Dept 2011 ]).

When deciding a motion under § 3211(a)(7) using evidence beyond the complaint, the court asks whether the plaintiff has a cause of action and may dismiss only if an alleged material fact is disproved without significant dispute.

Conyers v. Isabella Geriatric Ctr., Inc. · filed 2024-10-15(a)(7)

Where, however, the court considers evidentiary material beyond the complaint, as it does here, the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (Guggenheimer v Ginzburg, 43 NY2d at 275), but dismissal will not eventuate unless it is "shown that a material fact as claimed by the pleader to be one is not a fact at all" and that "no significant dispute exists regarding it" (id.).

An affidavit does not constitute documentary evidence supporting dismissal under CPLR 3211(a)(1).

Haut v. Danella Constr. of NY, Inc. · filed 2024-06-18(a)(1)

Here, Agro's affidavit does not "constitute documentary evidence within the meaning of the statute" (See Art and Fashion Group Corp. v Cyclops Production, Inc., 120 AD3d 436, 438 [1st Dept 2014] [internal citations omitted]).

Under CPLR 3211(a)(7), a defendant's affidavit can support dismissal if it conclusively establishes that the plaintiff has no cause of action.

Camille v. Federation of Prot. Welfare Agencies, Inc. · filed 2024-12-11(a)(7)

Generally, "[a]ffidavits submitted by a defendant 'will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action'" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328, quoting Lawrence v Graubard Miller , 11 NY3d 588, 595 [alteration omitted]). Here, the evidence submitted by the Federation conclusively established that the plaintiff has no cause of action against it.

When a court considers evidence beyond the complaint on a motion to dismiss for failure to state a cause of action, dismissal requires a showing that a claimed material fact is false and that no significant dispute exists about it.

Temple v. Harlem Ctr. for Nursing & Rehabilitation, LLC · filed 2025-01-07(a)(7)

Where, however, the court considers evidentiary material beyond the complaint, as it does here, the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d at 275), but dismissal will not eventuate unless it is “shown that a material fact as claimed by the pleader to be one is not a fact at all” and that “no significant dispute exists regarding it” (id.).

On a CPLR 3211(a)(7) motion, a court may consider documentary evidence that conclusively establishes the plaintiff has no cause of action.

Esposito v. State of N.Y. Unified Ct. Sys. · filed 2025-01-10(a)(7)

As held by the First Department and the Court of Appeals, a trial court may consider documentary evidence on a CPLR 3211 (a)(7) to attack the sufficiency of a pleading if the evidence conclusively establishes that Plaintiff has no cause of action (Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128 [1st Dept 2014] citing Rovelto v Orofino Realty Co., Inc., 40 NY2d 633, 636 [1976]).

On a motion to dismiss under CPLR 3211(a)(7), extrinsic evidence may negate allegations in the pleading, which the court then need not accept as true.

de Blasio v. New York City Conflict of Interest Bd. · filed 2025-01-13(a)(7)

Respondents rely on extrinsic evidence to support their motion, thus Petitioner's allegations in the Verified Petition are not deemed true and can be negated by the evidence submitted.

Under CPLR 3211(a)(7), evidence submitted to dismiss a complaint must refute the plaintiff’s specific factual allegations.

Sanders v. Sanders · filed 2025-01-31(a)(7)

We further conclude that defendants did not meet their burden on that part of the cross-motion seeking to dismiss the complaint against Sanders pursuant to CPLR 3211 (a) (7) inasmuch as they submitted no evidence refuting plaintiff's specific and detailed allegations that Sanders secreted marital assets prior to the entry of the agreement.

Under CPLR 3211(a)(7), a defendant’s records do not warrant dismissal unless they conclusively disprove a material pleaded fact and leave no significant dispute about it.

Brathwaite v. Eubanks · filed 2025-02-19(a)(7)

Contrary to the defendant's contentions, the records she submitted were insufficient to establish that "a material fact as claimed by the pleader to be one is not a fact at all" and that "no significant dispute exists regarding it" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275; see Phillips v Taco Bell Corp. , 152 AD3d at 808).

On a CPLR 3211(a)(7) motion, evidentiary submissions can warrant dismissal when they conclusively negate a material fact alleged by the plaintiff.

Rosas v. Morales · filed 2025-02-05(a)(7)

Here, the defendant's evidentiary submissions in support of his motion conclusively demonstrated that a material fact as claimed by the plaintiffs was "not a fact at all" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275), as the defendant's submissions negated the exclusivity element of the plaintiffs' cause of action for a judgment declaring that they acquired the subject real property by adverse possession.

On a motion to dismiss for failure to state a claim, evidence submitted in support of the motion must conclusively establish a defense as a matter of law.

Estate of Fabiano v. State of New York · filed 2025-04-16(a)(7)

Where, as here, evidentiary material such as an affidavit is submitted in support of the motion, the focus is no longer merely on the adequacy of the claim's allegations; and such evidence must conclusively establish a defense to claimant's claims as a matter of law ( see Holder , 231 AD3d at 87; Goldman v Metropolitan Life Ins. Co ., 5 NY3d 561, 571 [2005]; David D. Siegel & Patrick M. Connors, New York Practice § 265 [6th ed, Jan. 2024 update]).

Section 3211(a)(7) permits dismissal when documentary evidence conclusively establishes that the plaintiff has no claim.

Torres v. City of New York · filed 2025-04-22(a)(7)

However, where documentary evidence submitted conclusively establishes that the plaintiff has no claim, dismissal is appropriate (Rovello v. Orofino Realty Co., 40 NY2d 633, 636 [1976]; Mill Fin., LLC v. Gillett, 122 AD3d 98, 103 [1st Dept 2014]).

On a CPLR 3211(a)(7) motion, a defendant may submit documentary evidence for the court to consider.

South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Min. Co., Ltd. · filed 2025-05-13(a)(7)

Even though defendants moved under CPLR 3211(a)(7), as opposed to subsection (1), they could still submit documentary evidence such as the Sale and Purchase Agreements (SPAs) ( see Basis Yield , 115 AD3d at 133).

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires showing that a claimed material fact is not a fact at all and that no significant dispute exists about it.

Matter of Doran Constr. Corp. v. New York State Ins. Fund · filed 2025-06-18(a)(7)

"Where evidentiary material is submitted and considered on a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Jackson v Bank of Am., N.A. , 149 AD3d 815, 820; see generally CPLR 404[a]). Here, the State Insurance Fund has not established that dismissal is warranted under this standard.

When a court considers evidence beyond the complaint on a motion to dismiss for failure to state a cause of action, dismissal requires conclusive proof that a material alleged fact is false.

Jenkins v. Dewitt Rehabilitation & Nursing Ctr. Inc. · filed 2025-06-24(a)(7)

Where, however, the court considers evidentiary material beyond the complaint, as it does here, the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d at 275), but dismissal will not eventuate unless it is “shown that a material fact as claimed by the pleader to be one is not a fact at all” and that “no significant dispute exists regarding it” (id.).

When a court considers evidence beyond the complaint on a motion to dismiss for failure to state a cause of action, dismissal requires a conclusive showing that a material alleged fact is false and undisputed.

Estate of Ortiz v. Archcare at Terence Cardinal Cooke Health Care Ctr. · filed 2025-06-26(a)(7)

Where, however, the court considers evidentiary material beyond the complaint, as it does here, the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (id.), but dismissal will not eventuate unless it is “shown that a material fact as claimed by the pleader to be one is not a fact at all” and that “no significant dispute exists regarding it” (id.).

When a court considers evidence on a motion to dismiss without converting it to summary judgment, the complaint may be dismissed if the evidence conclusively shows that a material fact alleged by the plaintiff is untrue and undisputed.

Peralta-Mera v. Streep · filed 2025-12-10(a)(7)

Thus, the defendant's evidentiary submissions conclusively demonstrated that a material fact as claimed by the plaintiff—that his injuries were caused by the defendant's negligence—was not a fact at all and that no significant dispute exists regarding that allegation.

On a CPLR 3211(a)(7) motion supported by evidence of a complete defense, the evidence of that defense must be conclusive.

Thomas v. Concourse Rehabilitation & Nursing Ctr., Inc. · filed 2025-12-11(a)(7)

Accordingly, defendant did not conclusively establish entitlement to immunity under the EDTPA ( see Jackson , 236 AD3d at 595; Holder v Jacob , 231 AD3d at 88 ["Where, as here, the CPLR 3211[a][7] motion is predicated on what is asserted to be a complete defense, and that motion is supported by evidence, the evidence of the defense must be conclusive "]).

On a motion to dismiss for failure to state a cause of action, § 3211 permits the court to consider a claimant's reply affidavits submitted to address deficiencies in the claim.

McDowell v. State of New York · filed 2026-01-02(a)(7)

Finally, unlike the jurisdictional issues raised in a motion to dismiss pursuant to the Court of Claims Act, when a defendant moves to dismiss a claim for failing to state a cause of action pursuant to CPLR 3211, in addition to the claim and its exhibits, the Court may also review reply affidavits by a claimant submitted to ameliorate any deficiencies in the claim.

A movant under CPLR 3211 must specify the grounds for dismissal, and the court may not consider evidentiary material or an affirmation on a motion under subsection (a)(7).

Kelly v. New York City Tr. Auth. · filed 2026-03-18(a)(7)

As a threshold matter, the branch of the Transit Defendants’ motion to dismiss is denied. The Transit Defendants did not specify the specific grounds for dismissal pursuant to CPLR 3211, and the Transit Defendants submitted evidentiary material and an affirmation in support of their motion, which cannot be considered on a motion to dismiss pursuant to CPLR 3211 (a) (7).

Under CPLR 3211(a)(1), documents that qualify as documentary evidence do not warrant dismissal unless they conclusively resolve the claim.

Mendez v. Primitive Christian Church · filed 2026-03-26(a)(1)

Here, while GCAG's constitution and by-laws are proper documentary evidence for the purposes of a CPLR 3211(a)(1) inquiry, they do not conclusively resolve the issue of whether GCAG is liable.

When a court considers evidentiary material on a motion under section 3211(a)(7), it asks whether the plaintiff has a cause of action, not merely whether the complaint states one.

Matter of Hedman Resources Ltd. v. Occidental Chem. Corp. · filed 2026-05-01(a)(7)

In evaluating whether a complaint should be dismissed pursuant to CPLR 3211 (a) (7) in a case where the court has considered evidentiary material in support of or in opposition to the motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one" (Leon, 84 NY2d at 88 [internal quotation marks omitted]).

When evidence is considered on a motion to dismiss under subsection (a)(7) without converting the motion to one for summary judgment, dismissal requires a showing that a claimed material fact is not a fact at all and that no significant dispute exists about it.

Maddox v. Episcopal Health Servs., Inc. · filed 2026-05-13(a)(7)

"Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and dismissal shall not eventuate unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d 645, 646).

On a motion to dismiss for an insufficient notice of claim, the court may consider examination testimony and other evidence properly before it.

Burgos v. City of New York · filed 2022-02-09(a)(7)

A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient, in addition to examining the four corners of the notice of claim, may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court ( see D'Alessandro v New York City Tr. Auth. , 83 NY2d 891, 893; Parker-Cherry v New York City Hous. Auth. , 62 AD3d 845, 846; see also Davis v City of New York , 153 AD3d at 660).

A court may deny a motion to dismiss affirmative defenses under CPLR 3211(b), with leave to renew, when a pro se defendant lacks appropriate notice of an accompanying summary judgment motion.

Cavalry SPV I, LLC v. Wilkerson · filed 2024-12-04(b)

In addition, in light of the lack of appropriate notice of the summary motion on pro se defendant and the public policy in favor of such notice, that part of the motion that seeks dismissal of the affirmative defenses under CPLR 3211 (b) is also denied with leave to renew.

Section 3211(e) provides for waiver of affirmative defenses, and waived defenses may be dismissed on summary judgment.

Star201, LLC v. Duran · filed 2024-12-04(e)

However, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment dismissing Duran's affirmative defenses other than the affirmative defense alleging lack of standing. The plaintiff demonstrated, prima facie, that those affirmative defenses were waived, were without merit, or were conclusory in nature and contained no factual allegations ( see CPLR 3211[e]; US Bank N.A. v Okoye-Oyibo , 213 AD3d 718, 721-722).

Section 3211 requires denial of a motion to dismiss an affirmative defense when a factual dispute leaves doubt about whether the defense is available.

Sterling v. Diaz · filed 2024-11-06(b)

Understood this way, upon this record, plaintiff is not entitled to have defendants' "second," "third" and "fourth" affirmative defenses, based upon Article 51 of the Insurance law, dismissed at this time ( see In re Liquidation of Ideal Mut Ins Co , 140 AD2d 62, 67 [1st Dept 1988] [finding that "[t]he truth of the allegations must be assumed, and if under any view of the facts a defense is stated, the motion must be denied"]; see also Wells Fargo Bank, NA v Rios, 160 AD3d 912, 913 [2nd Dept 2018] [finding that "if there is any doubt as to the availability of a defense, it should not be dismissed").

Section 3211(b) permits a party to move to dismiss affirmative defenses.

Keneally, Lynch & Bak, LLP v. Salvi · filed 2024-10-30(b)

However, the plaintiff was entitled to dismissal of the defendant's affirmative defenses pursuant to CPLR 3211(b).

CPLR 3211(b) permits dismissal of affirmative defenses that are conclusory and unsupported by facts.

Apsec Resolution, LLC v. West 21st Assoc. LLC · filed 2024-10-25(b)

As to the branch of Plaintiffs motion to dismiss Defendants' affirmative defenses, CPLR §321 l[b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". ... All the affirmative defenses and counterclaims are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition.

Under CPLR 3211(b), the party moving to dismiss a defense bears the burden of showing that it lacks merit as a matter of law.

373-381 PAS Assoc., LLC v. Moss & Moss LLP · filed 2024-03-12(b)

The burden is on the plaintiff to demonstrate that the defenses are without merit as a matter oflaw. ... The plaintiff met that burden.

CPLR 3211(b) permits dismissal of affirmative defenses that are conclusory and unsupported by facts.

HSBC Bank USA, N.A. v. Wu · filed 2024-02-16(b)

As to the branch of the motion to dismiss Defendants' affirmative defenses, CPLR §3211 [b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". ... As pied, all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer.

Section 3211(b) permits dismissal of affirmative defenses asserted in a conclusory manner without supporting detail.

West-Park Presbyt. Church of New York City v. Center at W. Park, Inc. · filed 2024-02-20(b)

The branch of the plaintiff's motion seeking dismissal of the defendant's affirmative defenses is granted. ... The first, fifth, and eighth purported affirmative defenses are improperly asserted in a conclusory manner without any detail.

Section 3211(b) permits dismissal of affirmative defenses that lack merit, including defenses that are conclusory and unsupported by facts.

Avant Capital 388 Broadway LLC v. 388 Broadway Owners LLC · filed 2024-01-26(b)

As to the branch of Plaintiffs motion to dismiss Defendants' affirmative defenses, CPLR §3211 [b] provides that"[ a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". ... All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition.

Under CPLR 3211(b), a party moving to dismiss an affirmative defense must show that it lacks merit as a matter of law.

INK 954 LLC v. Mann · filed 2023-12-27(b)

On a motion to dismiss a defense under CPLR 3211(b) the moving party "bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense" ( Lewis v. U.S. Bank , 186 AD3d 694, 697 [2d Dept 2020] [internal citations omitted]).

CPLR 3211(b) does not permit a plaintiff to strike a failure-to-state-a-cause-of-action defense to test the sufficiency of the plaintiff’s own claim.

Lewis v. U.S. Bank N.A. · filed 2020-08-19(b)

With respect to the defendant's first affirmative defense, alleging failure to state a cause of action, no motion lies under CPLR 3211(b) to strike this affirmative defense as this amounts to an endeavor by the plaintiff to test the sufficiency of his or own claim ( see Jacob Marion, LLC v Jones , 168 AD3d 1043, 1044; Butler v Catinella , 58 AD3d 145, 150-151).

Section 3211(b) requires a plaintiff seeking dismissal of an affirmative defense to show that the defense lacks merit as a matter of law.

Hutchinson v. Salem Truck Leasing, Inc. · filed 2020-05-22(b)

To warrant dismissal of an affirmative defense, plaintiff must demonstrate that the defense is without merit as a matter oflaw (see CPLR 321 1[b]; Ca/po-Rivera v Siroka, 144 AD3d 568 [1st Dept 2016]).

Section 3211(b) permits dismissal of a defense that is not stated or has no merit.

Matter of Saks Inc. Shareholder Litig. v. XXX · filed 2020-03-26(b)

CPLR § 3211 (b) permits the dismissal of a defense on the basis that the defense is not stated or has no merit. ... For the reasons set forth above, the Settlement does not bar the Plaintiffs from asserting their claims in the SAC and the Fifteenth Defense must also be dismissed.

Section 3211(b) does not permit striking a statute of limitations defense when factual questions remain about whether a toll applies.

Pichichero v. Falcon · filed 2016-09-14(b)

Inasmuch as questions of fact remain as to whether the continuous treatment toll is applicable to the plaintiff’s malpractice claims against Spinowitz, the Supreme Court properly denied that branch of the plaintiff’s cross motion which was to strike Spinowitz’s affirmative defense of the statute of limitations (see CPLR 3211 [b]; Bank of N.Y. v Penalver, 125 AD3d at 797; Mazzei v Kyriacou, 98 AD3d at 1089).

CPLR 3211(b) permits dismissal of affirmative defenses that are without merit as a matter of law.

AutoOne Insurance v. Eastern Island Medical Care, P.C. · filed 2016-07-06(b)

Thus, the Supreme Court also should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first (failure to exhaust administrative remedies), second (default in master arbitration proceeding), and fourth (failure to satisfy condition precedent) affirmative defenses, as those defenses were without merit as a matter of law (see Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2012]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]).

On a motion to dismiss affirmative defenses under CPLR 3211 (b), the movant must show that the defenses lack merit as a matter of law.

Chateau Owners Corp. v. Monahan · filed 2016-03-30(b)

Finally, landlord did not demonstrate that tenant's fourth, fifth and six affirmative defenses lack merit as a matter of law, which is the movant's burden on a motion to dismiss defenses pursuant to CPLR 3211 (b) ( see id. at 1089).

Under CPLR 3211(b), a court should dismiss an affirmative defense only when it is without merit as a matter of law; doubt about the defense’s availability favors keeping it.

Staropoli v. Agrelopo, LLC · filed 2016-02-10(b)

In addition, if there is any doubt as to the availability of a defense, it should not be dismissed (see Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; Becker v Elm A.C. Corp., 143 AD2d 965 [1988]).

Section 3211(b) permits dismissal of affirmative defenses that lack factual support.

BURGESS, II, JEROME v. MEYER, MALCOLM · filed 2013-11-08(b)

The court also should have dismissed the 15th and 17th affirmative defenses, which alleged, inter alia, that plaintiffs’ parents created or exacerbated the hazardous lead paint condition, because those defenses have no merit inasmuch as there is no factual support for them in the record (see CPLR 3211 [b]; cf. Connelly v Warner, 248 AD2d 941, 943).

Under CPLR 3211(b), a party moving to dismiss an affirmative defense must establish that the defense is without merit as a matter of law.

Metz v. State · filed 2011-07-14(b)

Conversely, on their motion to dismiss defendant’s affirmative defense of sovereign immunity, claimants were required to establish that it is without merit as a matter of law (see CPLR 3211 [b]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]).

Under CPLR 3211(b), a motion to dismiss an affirmative defense must be denied if there is any doubt about the defense’s availability.

STOPANI, MICHAEL v. ALLEGANY CO-OP INSURANCE CO. · filed 2011-04-01(b)

Pursuant to CPLR 3211 (b), a plaintiff may move to dismiss a defense on the ground that it has no merit (see Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721, 723). ... The motion must be denied if there is any doubt with respect to the availability of a defense (see Nahrebeski v Molnar, 286 AD2d 891).

Section 3211(b) requires denial of a motion to dismiss an affirmative defense if there is any doubt about the defense’s availability.

Stopani v. Allegany Co-op Insurance · filed 2011-04-01(b)

Pursuant to CPLR 3211 (b), a plaintiff may move to dismiss a defense on the ground that it has no merit (see Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]). ... The motion must be denied if there is any doubt with respect to the availability of a defense (see Nahrebeski v Molnar, 286 AD2d 891 [2001]).

Section 3211(b) permits dismissal of an affirmative defense that is not stated or has no merit.

Galasso, Langione & Botter, LLP v. Liotti · filed 2011-02-22(b)

A party may move to dismiss a defense “on the ground that a defense is not stated or has no merit” (CPLR 3211 [b]).

CPLR 3211(b) contemplates a written pleading asserting the defense targeted for dismissal.

In re Deviddio · filed 2011-02-18(b)

CPLR 3211 (b) provides the grounds for the dismissal of a defense, that being “that a defense is not stated or has no merit.” ... In either event, the section clearly contemplates the existence of a written pleading in which the defense is asserted.

CPLR 3211(b) requires dismissal of affirmative defenses that state only legal conclusions without supporting facts.

Bank of America, N.A. v. 414 Midland Avenue Associates, LLC · filed 2010-11-09(b)

However, where affirmative defenses “merely plead conclusions of law without any supporting facts,” the affirmative defenses should be dismissed pursuant to CPLR 3211 (b) (Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]).

Under CPLR 3211(b), a party may obtain dismissal of affirmative defenses by showing that they lack merit as a matter of law because they do not apply to the facts or fail to state a defense.

Tenore v. Kantrowitz · filed 2010-08-10(b)

Here, the plaintiff sustained his burden of demonstrating that the challenged defenses are ... without merit as a matter law because they either do not apply under the factual circumstances of this case, or fail to state a defense (see Greco v Christoff ersen, 70 AD3d at 771; Vita v New York Waste Seros., LLC, 34 AD3d 559 [2006]).

A plaintiff moving to dismiss an affirmative defense must show that the defense is without merit as a matter of law.

Emigrant Mortgage Co. v. Fitzpatrick · filed 2010-08-11(b)

When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is “without merit as a matter of law” (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]; see CPLR 3211 [b]).

CPLR 3211(a) does not permit preanswer dismissal of a slander claim based on qualified privilege; defendants must plead the privilege as an affirmative defense and support it on summary judgment.

Wilcox v. Newark Valley Central School District · filed 2010-06-10(a)

A claim of qualified privilege is an affirmative defense to be raised in defendants’ answer and “does not lend itself to a preanswer motion to dismiss pursuant to CPLR 3211 (a)” (Demas v Levitsky, 291 AD2d 653, 661 [2002], Iv dismissed 98 NY2d 728 [2002]).

CPLR 3211(b) permits a party to move to dismiss one or more defenses when a defense is not stated or lacks merit.

Courthouse Corporate Center LLC v. Schulman · filed 2010-06-01(b)

Pursuant to CPLR 3211 (b), a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit.

A party moving under CPLR 3211(b) to dismiss affirmative defenses bears the burden of demonstrating that the defenses cannot be maintained.

Tornheim v. Blue & White Food Products Corp. · filed 2010-05-04(b)

Tornheim failed to meet his burden of demonstrating that the defenses cannot be maintained (see CPLR 3211 [b]; Matter of Harrison v State of New York, 262 AD2d 833 [1999]; Connelly v Warner, 248 AD2d 941 [1998]; Winter v Leigh-Mannell, 51 AD2d 1012 [1976]).

On a motion under CPLR 3211(b), a defense is construed liberally and should not be dismissed if there is any doubt about its availability.

Family-Friendly Media, Inc. v. Recorder Television Network · filed 2010-06-01(b)

“Upon a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed”

Section 3211(b) requires a plaintiff moving to dismiss an affirmative defense to show that the defense lacks merit as a matter of law.

Fried v. Tucker · filed 2010-03-23(b)

Given that it is plaintiffs burden on his motion pursuant to CPLR 3211 (b) to demonstrate that the affirmative defense he attacks is without merit as a matter of law, and that in this instance plaintiff has not so much as made clear to this court that he knows what affirmative defense he is attacking, the court has no choice but to deny plaintiffs motion to dismiss the thirteenth affirmative defense.

CPLR 3211 (b) allows a plaintiff to move at any time to dismiss an affirmative defense that has no merit.

Greco v. Christoffersen · filed 2010-02-09(b)

CPLR 3211 (b) authorizes a plaintiff to move, at any time, to dismiss a defendant’s affirmative defense on the ground that it “has no merit” (see Albin v First Nationwide Network Mtge. Co., 248 AD2d 417, 419 [1998]; see generally Butler v Catinella, 58 AD3d 145 [2008]).

Section 3211(b) permits dismissal of an affirmative defense when its factual basis is challenged, but the defense remains if the defendant raises an issue of fact.

Nahrebeski v. Molnar · filed 2001-09-28(b)

The court also properly denied that part of plaintiffs motion pursuant to CPLR 3211 (b) seeking dismissal of each defendant’s affirmative defense of failure to wear a seat belt. Although plaintiff met his initial burden by challenging the factual basis for that affirmative defense, defendants submitted evidence raising an issue of fact whether plaintiff was properly wearing the seat belt at the time of the accident.

Section 3211(b) does not permit a motion to dismiss a defense that the complaint fails to state a cause of action.

American Horse Shows Ass'n v. Ward · filed 2000-12-28(b)

That defense is not properly subject to a motion to dismiss pursuant to CPLR 3211 (b) (see, Riland v Todman & Co., 56 AD2d 350, 353 [1st Dept 1977]).

Section 3211(b) does not permit dismissal of an affirmative defense unless the party seeking dismissal establishes that the defense is meritless as a matter of law.

NY Univ. v. CONT'L INS CO · filed 1995-12-27(b)

Accordingly, it was error to dismiss the affirmative defense at this early pleading stage of the litigation, because plaintiff had yet to establish that the affirmative defense was meritless as a matter of law ( see , CPLR 3211 [b]).

Under CPLR 3211(b), a party moving to dismiss an affirmative defense must establish that the defense is meritless as a matter of law.

New York University v. Continental Insurance · filed 1995-12-27(b)

Accordingly, it was error to dismiss the affirmative defense at this early pleading stage of the litigation, because plaintiff had yet to establish that the affirmative defense was meritless as a matter of law (see, CPLR 3211 [b]).

Under CPLR 3211(b), a plaintiff must adequately support a motion to dismiss an affirmative defense when disputed facts bear on that defense.

Hauppauge Union Free School District v. Lawrence L. Smith Associates, P. C. · filed 1995-06-12(b)

Furthermore, the plaintiff failed to adduce adequate evidence to demonstrate that the three discrete contracts were a single project over which Smith had previously agreed to act as the sole architect. Hence, the plaintiff did not demonstrate that Smith’s defense of the Statute of Limitations should be dismissed pursuant to CPLR 3211 (b).

A motion to strike a defense under subsection (b) is premature when a factual question essential to that defense remains unresolved.

Benjamin Shapiro Realty Co. v. Henson · filed 1994-06-27(b)

However, since the question of whether or not the subject premises is exempt from the RSL has not yet been determined, this branch of petitioner’s motion must be denied as premature.

Section 3211 permits a motion challenging the sufficiency of defenses at any time before trial or even at trial.

Sadif, S. A. v. Burnham & Co. · filed 1964-03-19

Under rule 3211 of the Civil Practice Law and Rules, a motion challenging the sufficiency of defenses may be made at any time prior to, or even upon the trial.

CPLR 3211(c) allows a motion to dismiss affirmative defenses to search the record.

Schoonmaker v. Schoonmaker · filed 1964-06-23(c)

The motion to dismiss the affirmative defenses searches the record (CPLR 3211, subd. [c]).

A motion to strike a defense proceeds under CPLR 3211(b) and (c).

Schwartz v. Royal Danelli Corp. · filed 1964-07-07(b), (c)

A motion to strike a defense is under CPLR 3211 (subds. [b], [c]).

Section 3211(b) permits denial of a motion to dismiss defenses when unresolved factual issues preclude that relief.

Fleckenstein v. Nehrbas · filed 1964-07-09(b)

The issues of fact which we held precluded the granting of summary judgment to the defendants on the prior appeal in this action (16 A D 2d 811) similarly preclude the granting of the relief now sought by the plaintiff administrator.

Section 3211(b) allows a motion to dismiss affirmative defenses that are not stated; the court may dismiss some defenses while allowing another to stand.

Ellis v. Newton Paper Co. · filed 1964-10-01(b)

In this negligence action plaintiff moves for judgment dismissing seven affirmative defenses on the ground that defenses are not stated therein (CPLR 3211, subd. [b]). ... For the reasons expressed herein the motion for judgment dismissing the affirmative defenses designated ‘ ‘ First ’ ’, “Second”, “Third”, “Fourth”, “Fifth” and “Seventh” is granted, and as to the “Sixth” defense the motion is denied without prejudice.

Section 3211(b) permits a motion to dismiss an insufficient defense; it does not provide a motion to strike answer denials as sham.

Chicago Dressed Beef Co. v. Gold Medal Packing Corp. · filed 1964-12-10(b)

The motion was made under CPLR 3211 (subd.,b). That section provides that a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated. Actually the case was presented to the court as a motion to strike on the ground of sham, and Special Term so treated it. This was error, because there is no longer a motion to stirke as sham under the CPLR.

A motion under CPLR 3211(b) to dismiss defenses should be denied when the issues they raise require a trial.

Manufacturers Hanover Trust Co. v. American Airlines, Inc. · filed 1965-05-13(b)

Order, entered on June 17,1964, granting plaintiff’s motion, made pursuant to CPLR 3211 (subd. [b]), to dismiss the first and second separate and partial defenses pleaded in the answer, unanimously reversed, on the law, with $30 costs and disbursements to appellant and the motion denied. ... Special Term, in our opinion, was not warranted in relying, in the present context, on definitions of international air transportation adopted for Federal tax purposes (TJ. S. Code, tit. 26, § 4262), and on this record we cannot agree that a trial of the issues raised by the defenses is not required.

On a motion to dismiss an affirmative defense as legally insufficient, the court assumes the truth of its allegations and all reasonable inferences from them.

Travelers Indemnity Co. v. Central Trust Co. · filed 1965-09-28(b)

It is elementary that upon a motion to strike a pleading as insufficient in law the court must assume the truth of every allegation in such pleading and every inference reasonably to be drawn therefrom.

Subdivision (b) lets a plaintiff move to dismiss a jurisdictional defense and obtain prompt resolution of the jurisdictional issue.

Vernon v. Rock-Ledge House, Inc. · filed 1966-01-12(b)

Thus, if a defendant as a tactical maneuver interposes a jurisdictional defense rather than move under CPLR 3211 (subd. [a], par. 8) to dismiss on such ground, plaintiff may counter by moving-under CPLR 3211 (subd. [b]) to dismiss it and obtain a prompt disposition of that jurisdictional issue.

A defense should not be struck under CPLR 3211(b) when its validity depends on factual issues that require a trial.

Caffery v. New York Central Railroad · filed 1965-12-16(b)

This defense creates an issue of fact which cannot be determined until a trial of the issues. ... In any event, the fate of the second affirmative defense cannot be determined at this stage of the action and defendant should have the right to assert this claim as an affirmative defense.

Section 3211(b) does not permit an affirmative defense to be dismissed as a matter of law when conflicting evidence or reasonable inferences require a trial of the defense.

Miller v. Davis · filed 1966-03-24(b)

Where the evidentiary facts presented are in conflict or where different inferences may reasonably be drawn from the evidence, the issues should not be resolved as a matter of law and the defendant should have an opportunity under his affirmative defense to a separate trial to determine whether he stands in loco parentis to the infant plaintiff.

Subdivision (e)'s timing limits apply to State motions to dismiss in the Court of Claims, with the 20-day counterclaim period governing motions subject to those limits.

Guy v. State · filed 1966-05-04(e)

That part of the motion based on paragraphs 1 and 8 is denied as not timely made. Although the State does not need to serve or file a responsive pleading, the provisions of subdivision (e) of CPLR 3211 apply to motions made by the State. The Legislature has included this provision in order to dispose of motions to dismiss at a time early in the course of the action or at the time of trial. The State is obliged to file a counterclaim within 20 days of service of a claim upon the Attorney-General (Court of Claims Act, rule 14). This time limit, involving as it does the only responsive pleading which the State need serve, must govern the time limit for those motions subject to the limitations set out in CPLR 3211.

Section 3211(b) allows a motion to dismiss a defense, which need not be labeled complete or partial.

Rosanoff v. Skura · filed 1966-06-24(b)

Traditionally, defenses may be either complete or partial. Under the CPLR, there is no requirement that the pleader label his defense as one or the other. The objective is to prevent an adversary’s surprise as to the factual matter relied upon. The instant application attacks a defense that may be either complete or partial.

Section 3211(b) permits the court to examine the complaint on a motion to dismiss defenses; if the complaint is insufficient, the court may deny the motion without reaching the defenses.

Rosen v. Colonial Cooperative Insurance · filed 1966-10-20(b)

If the complaint be found insufficient, the court is not required to pass upon the defenses.

Section 3211(b) permits dismissal of an affirmative defense for failure to state a defense or lack of merit; a defense giving adequate notice without prejudicing the plaintiff need not be dismissed.

Jones v. McNeill · filed 1966-08-29(b)

Although the court may not be able to determine the issue here under CPLR 3211 (subd. [e)], because of lack of information as to whether or not there is an undue burden on interstate commerce, it must be decided whether the defense in question is to be dismissed on the ground that a defense is not stated or has no merit (CPLR 3211, subd. [b]). ... Tested in the light of these principles and realizing that the defense as alleged apprises the court and parties of the subject matter of this aspect of the controversy and that plaintiffs are not prejudiced, this defense should not be dismissed at this time (cf. Professor Siegel, Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, 1965 Cum. Pocket Part, following CPLR 3013, pp. 52 et seq.).

A motion to dismiss a defense also tests the sufficiency of the complaint.

Follendorf v. Brei · filed 1966-08-23(b)

A motion to dismiss a defense searches the sufficiency of the complaint.

Section 3211(e) permits a motion for failure to state a cause of action at any subsequent time, even while a motion to dismiss on another ground is pending.

Higby Enterprises, Inc. v. City of Utica · filed 1967-07-31(e)

Accordingly, the defendant city may have set forth this defense in its answer or may, at its own option, make a motion under CPLR 3211 at any time. Motions under paragraph 7 of subdivision (a) are not limited.

Section 3211(b) does not permit dismissal of a defense when the facts needed to resolve it require fuller development at trial.

Tambascio v. Gioffre · filed 1967-04-10(b)

On plaintiff’s motion under CPLR 3211 (subd. [b]), Special Term struck out that defense. In our opinion this was error. Determination of the question whether Mrs. Tambaseio was or was not in the course of her employment at the time of the accident should not have been made on the sparse record before us, but should instead have been deferred for a full development of the facts at trial (cf. ...). Hence, the defense should not have been dismissed.

Section 3211(b) permits dismissal of an affirmative defense claiming that a complaint is insufficient on its face when the complaint is sufficient.

Review Co. v. Lignum Chemical Works · filed 1967-04-24(b)

We also believe that the complaint is sufficient on its face; hence, the first defense, which pleads to the contrary, should have been dismissed (CPLR 3211, subd. [b]).

Section 3211(b) does not warrant dismissing a defense that adequately raises a factual issue, even if the defendant has yet to prove it.

Wholesale Service Supply Corp. v. Rubin · filed 1967-04-24(b)

In our opinion the separate defense as pleaded, together with the facts adduced on the instant motion to dismiss the defense for insufficiency (CPLR 3211, subd. [b]), adequately raises the issue that plaintiff bought in at the execution sale with knowledge that the Sheriff had proceeded upon only five days’ notice of sale, instead of the minimum of six days as prescribed by statute (CPLR 5233). Whether defendants can prove such allegation is for the trier of the facts.

On a motion to dismiss affirmative defenses under CPLR 3211(b), the court assumes the petitioner can prove her allegation of fraud.

In re the Estate of Lemle · filed 1967-12-27(b)

The widow moves under CPLR 3211 (subd. [b]). ... For the purpose of the defenses here being considered the court must assume that fraud will be proved. ... The petitioner widow’s motion to dismiss the affirmative defenses of estoppel and laches is granted.

Section 3211(b) permits an affirmative defense to survive dismissal when the defense and affidavits raise a factual issue requiring trial.

Congregational Realty Corp. v. Congregation Bnai Israel · filed 1968-11-12(b)

There is enough in these affirmative defenses and in what is contained in the affidavits which are part of this record, to raise the issue as to whether the plaintiff or the defendant should get the benefit of the ■bank’s willingness to accept $95,000 in payment of its claim for $157,270.

Section 3211 permits dismissal of an affirmative defense that lacks factual merit even if it is sufficient on its face.

Leonard v. Leonard · filed 1968-12-17(b)

The instant determination concerns the affirmative defenses only. As to these it is an adjudication that, despite the fact they may be sufficient on their face, they are factually lacking in merit. Prior to CPLR 3211 a defense which was proper in form was unassailable unless the entire action was vulnerable to summary judgment. The section in question authorizes the adjudication made.

Section 3211(b) permits a motion to dismiss an affirmative defense to test both the defense’s merits and the sufficiency of its pleading.

Gold v. Swiss Air Transportation Co. · filed 1969-12-08(b)

The absence of such an allegation in the supporting affidavits is fatal on a motion to dismiss the defense, which brings up for review the merits of the defense as well as the sufficiency of the pleading (CPLR 3211, subd. [b]).

CPLR 3211(b) permits a court to treat a motion for partial summary judgment as a motion to dismiss a defense that has no merit when other factual issues remain for trial.

Oneida National Bank & Trust Co. v. Zurich Insurance · filed 1971-07-07(b)

However, during the course of the oral argument, it appeared that there would be other questions of fact to be resolved at the trial so that the motion will be considered as one brought under 'CPLR 3211 (subd. [b]) to dismiss a defense that has no merit. ... Plaintiff’s motion to strike from defendant’s answer the affirmative defense as being without merit is hereby granted.

A motion under CPLR 3211(b) searches the record, permitting dismissal of a complaint that fails to state a claim even without a cross motion.

K J C Beauty, Inc. v. State · filed 1972-02-18(b)

Although no cross motion to dismiss the complaint has been made, the motion under CPLR 3211 (subd. [b]) “ searches the record”.

Section 3211(b) does not permit a court to strike defenses on its own initiative without notice when the moving party did not request that relief and summary judgment is not granted.

Croce v. Alicakos · filed 1974-09-30(b)

While a court’s power to search the record under a motion to dismiss a cause of action (counterclaim) is so broad as to include treating such a motion as one for summary judgment (CPLR 3211, subd. [e]), where summary judgment is not granted and the moving party has not asked that defenses be struck (CPLR 3211, subd. [b]), the court should not proceed sua sponte to grant such unrequested relief, absent notice to the defendants.

A motion under CPLR 3211 for failure to state a cause of action cannot raise a bona fide purchaser defense that must be pleaded in an answer.

Holland v. Fulbert, Inc. · filed 1975-07-24

This defense cannot be raised on a motion under CPLR 3211 to dismiss the complaint on the ground the pleading fails to state a cause of action.

Section 3211 permits a court to strike an affirmative defense at the pleadings stage when the affidavits and pleadings make the relevant facts clear enough to decide the issue as a matter of law.

Davis v. Pathe Cab Corp. · filed 1975-11-03(b)

However, where the facts are sufficiently clear that these issues can be decided as' a matter of law in the pleadings stage, on the basis of evidentiary material presented to the court in affidavits and pleadings, they should be so decided (Sullivan v Darling, 81 Misc 2d 817; Williams v Garcia, NYLJ, March 4, 1975, p 14, col 2).

A motion under section 3211(b) to dismiss affirmative defenses also brings the legal sufficiency of the complaint before the court.

Mazo v. Town of Shawangunk · filed 1976-05-28(b)

Since the instant motion to dismiss defenses automatically brings up the question of the legal sufficiency of the complaint (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:40), the court must now consider that issue.

On a motion to strike an affirmative defense for insufficiency under Section 3211(b), the court assumes the truth of the defense’s allegations and all reasonable inferences from them.

Flam v. Herrmann · filed 1977-05-20(b)

French moves to strike the third, fourth and fifth affirmative defense for insufficiency, pursuant to CPLR 3211 (subd [b]). It is elementary that upon such a motion the court must assume the truth of every allegation in such pleading and every inference reasonably to be drawn therefrom.

A motion under CPLR 3211(b) to dismiss defenses may be denied when factual proof is needed to determine a statute of limitations defense.

Arcuri v. Leighty · filed 1977-07-24(b)

The plaintiff opposes the motion for summary judgment; moves for an order of dismissal of all defenses raised in the answer (CPLR 3211, subd [b]); ... I do not reach any finding in respect to defendants’ defense of the Statute of Limitations because proof shall be required of all the facts of the alleged overt acts before such determination can be made. Further, the defenses of the defendants are not dismissed and the motion of defendants which would require the plaintiffs to be more specific and certain as to the causes of action they plead is denied.

On a motion testing the legal sufficiency of an affirmative defense under CPLR 3211(b), the defendant need not make a factual showing.

Raine v. Allied Artists Productions Inc. · filed 1978-06-15(b)

No such factual showing was required in response to a motion addressed to the legal sufficiency of the defenses, and as Special Term appropriately noted, the affidavit submitted in support of the motions also failed to present relevant admissible evidence.

Section 3211(b) permits a party to move to dismiss an affirmative defense that has no merit.

Bonner v. Stevens · filed 1979-10-09(b)

In this action ... plaintiff has moved to dismiss the affirmative defense set forth in the answer on the ground that such defense "has no merit.” (CPLR 3211, subd [b].) ... Plaintiffs motion to strike the affirmative defense is granted.

Section 3211(b) permits a party to move to dismiss one or more defenses because a defense is not stated or has no merit.

Shorey v. Merchants Mutual Insurance · filed 1979-10-15(b)

The second issue concerns plaintiff’s motion pursuant to CPLR 3211 (subd [b]) to dismiss certain affirmative defenses. The first challenged defense alleges that the building and its contents were owned jointly by the plaintiff and his wife and that therefore the plaintiff’s interest cannot exceed one half. These allegations do not state a defense. ... Since the plaintiff’s recovery is not necessarily controlled by his ownership interest in the real or personal property, the defendant’s first defense should be dismissed. Plaintiff challenges the other defenses as being "insufficient in law”; he does not challenge the defenses on their merits and does not deny the material allegations contained therein. In examining the second, third and fourth affirmative defenses, we conclude that a viable defense can be discerned in each of them and that they are sufficient to withstand the plaintiff’s motion (see, generally, Guggenheimer v Ginzburg, 43 NY2d 268, 274-275).

CPLR 3211(b) permits dismissal of an affirmative defense that is insufficient or without merit.

Rakaric v. Croatian Cultural Club · filed 1980-08-11(b)

The order should be reversed on the law, the motion granted, and the first affirmative defense dismissed on the ground that it is insufficient and that it has no merit (see CPLR 3211, subd [b]).

Section 3211(b) permits consideration of an affirmative defense, but its merits may be premature to decide before the opposing party is examined when that party has exclusive relevant knowledge.

Montes v. Manufacturers Hanover Trust Co. · filed 1980-11-06(b)

With regard to the merits of the defense under CPLR 3211 (subd [b]), plaintiff has exclusive knowledge as to when she discovered her husband was fraudulently withdrawing money from her accounts. Thus, it would be impossible for defendant Manufacturers to develop the merits of this defense until it has had an opportunity to examine the plaintiff. For this reason, it would be premature for this court to consider the merits of Manufacturers’ affirmative defense based upon the Statute of Limitations.

Section 3211(e) permits only one pre-answer motion to dismiss; a second motion seeking the same relief should be rejected.

Geiser v. Geiser · filed 1980-12-18(e)

Defendant’s second motion, which flouted the clear procedural statute and judicial directive, should not have been rewarded by anything other than summary rejection (see Weinstein-Korn-Miller, NY Civ Prac, par 3211.01).

Under § 3211(b), defenses relevant to requested custody or visitation relief may withstand dismissal even if they do not defend against the principal paternity claim.

La Croix v. Deyo · filed 1981-02-27(b)

The third, fifth, sixth and seventh defenses, while they do not constitute legal defenses to the principal issue — whether the petitioner is or is not the father of the child do plead facts which may be relevant to the issue of custody and visitation. Since the Family Court, when it makes a finding of paternity, has jurisdiction to make an order of custody or of visitation (Family Ct Act, § 511; Matter of Pierce v Yerkovich, 80 Misc 2d 613) and the petitioner seeks such relief as well as a declaration of paternity, the defenses raised have sufficient merit to withstand the petitioner’s motion to dismiss them.

Section 3211(b) may not be used to strike mere denials in an answer.

Macklowe v. Browning School · filed 1981-03-17(b)

It does not sufficiently appear on this record that the plaintiff’s motion for summary judgment is based on any of the grounds enumerated in CPLR 3211 (subd [a]), and regarding subdivision (b) of said rule, the statute may not be used to strike mere denials contained in the answer.

CPLR 3211(b) governs motions to dismiss defenses, and a motion seeking that relief may be treated as a motion under this subsection.

Anderson v. WROC-TV · filed 1981-07-13(b)

Although the motion is brought under CPLR 3212, it appears that the application is actually one to dismiss defenses under CPLR 3211 (subd [b]) and the motion is converted accordingly.

On a motion to dismiss defenses under CPLR 3211(b), arguments attacking the plaintiff’s causes of action do not establish the sufficiency of the challenged defenses.

West v. Technical Aid Corp. · filed 1981-09-23(b)

While defendants’ assertions as to the purported insufficiency of the plaintiff’s causes of action may properly be the subject of a motion by defendants to dismiss or for summary judgment, these arguments do not serve to sustain the sufficiency of the subject defenses.

On a motion to dismiss an affirmative defense under CPLR 3211(b), the question is whether the defense is cognizable at law; evidence generally may be used only to cure a pleading defect.

Krasner v. New York State Electric & Gas Corp. · filed 1982-11-24(b)

The sole criterion, therefore, is whether there is a defense cognizable at law and any evidentiary matter may generally only be used to remedy a defect in the pleading (see Rovello v Orofino Realty Co., 40 NY2d 633).

A CPLR 3211(a)(5) motion should not resolve fact-dependent questions about whether an oral agreement is subject to the Statute of Frauds or whether promissory estoppel bars that defense.

Buddman Distributors, Inc. v. Labatt Importers, Inc. · filed 1982-12-17(a)(5)

Whether the agreement is one that is removed from the operation of the Statute of Frauds under the holding in Weiner v McGraw-Hill (supra), and whether the circumstances are so egregious as to render it unconscionable to permit the defendant to invoke the Statute of Frauds, are questions that should not be determined on the pleadings, but should await a full determination of the facts upon the trial.

Section 3211(a)(5) allows a limitations defense on a motion to dismiss, but factual disputes over waiver or estoppel cannot be resolved on a pre-answer motion addressed to the pleading.

Gilbert Frank Corp. v. Federal Insurance · filed 1983-01-04(a)(5)

Thus, we conclude that the alternate issues of waiver estoppel or both raised herein by the insured in response to the claim by its insurer that the action was untimely commenced, present factual issues which cannot be disposed of summarily on this record. In so concluding, we are mindful of the fact that the motion here was made prior to answer and, accordingly, was addressed to the face of the pleading under CPLR 3211.

Section 3211(b) and (c) do not apply when the plaintiff has made no motion under subdivision (b).

Grossman v. Laurence Handprints-N.J., Inc. · filed 1982-11-29(b), (c)

The provisions of CPLR 3211 (subds [b], [c]) are not applicable since no motion was made by the plaintiff under subdivision (b).

Section 3211(e) permits a second motion to dismiss on the ground in section 3211(a)(7) because that ground may be raised at any time.

Taylor v. Eli Haddad Corp. · filed 1983-03-14(e)

And, the single-motion rule of CPLR 3211 (subd [e]) is not offended where, as here, the second motion raises the ground of CPLR 3211 (subd [a], par 7), because a motion on this ground may be made at any time (Siegel, op. cit., CPLR C321L55, p 59).

Under CPLR 3211(b), an affirmative defense alleging defective service must be dismissed when the service affidavit identifies the required address and the defendant raises no factual dispute about it.

Stevens v. Feitknecht · filed 1983-04-01(b)

Plaintiff moved to dismiss this defense (CPLR 3211, subd [b]). ... In the absence of any question of fact, the motion to dismiss must be granted.