N.Y. C.P.L.R. § 3211

A motion to dismiss an affirmative defense under CPLR 3211(b) puts the complaint’s legal sufficiency at issue even without a cross motion to dismiss.

Saler v. City of New York · filed 1983-07-25(b)

A motion to dismiss an affirmative defense pursuant to CPLR 3211 (subd [b]) searches the record and puts the legal sufficiency of the complaint itself in issue even though no cross motion to dismiss has been made (Rand v Hearst Corp., 31 AD2d 406, 408; affd 26 NY2d 806; Smith v Heilbraun, 21 AD2d 830).

A motion to dismiss a counterclaim does not authorize dismissal of affirmative defenses; dismissing those defenses requires a motion directed at them under CPLR 3211(b).

Key Bank v. Lake Placid Co. · filed 1984-07-26(b)

The motions to dismiss were directed against the claims asserted by appellants. There was no motion by plaintiff, pursuant to CPLR 3211 (subd [b]), to dismiss any affirmative defenses. ... Therefore, Special Term erred in dismissing the affirmative defenses.

A grant of leave to amend an answer does not preclude a CPLR 3211(b) motion to dismiss the newly pleaded affirmative defense.

Hartford Insurance Group v. Town of North Hempstead · filed 1984-12-20(b)

Accordingly, Justice Wager’s granting of leave to amend does not preclude this court’s entertaining a motion to dismiss.

Section 3211(a) does not list setoff among the affirmative defenses that may be raised for the first time in a motion to dismiss the complaint.

Kivort Steel, Inc. v. Liberty Leather Corp. · filed 1985-04-18(a)

We note that setoff is not listed among the affirmative defenses which can be raised in the first instance by a motion to dismiss the complaint (CPLR 3211 [a]).

Section 3211(b) permits a court to strike a lack-of-personal-jurisdiction defense when proof of service establishes a prima facie case and the defendant raises no factual dispute.

Bidetti v. Salter · filed 1985-02-25(b)

Nevertheless, in opposition to plaintiffs’ cross motion, defendant asserted no facts to dispute service, a prima facie case of which had been established by inclusion of an affidavit of services within the cross motion papers. Thus, inasmuch as defendant has failed to create an issue of fact, that branch of the cross motion which sought to strike the defense based on lack of personal jurisdiction must be granted (see, CPLR 3211 [b]; Mitchell v Mendez, 107 AD2d 737; Stevens v Feitknecht, 93 AD2d 998).

A CPLR 3211(b) motion cannot anticipate defenses in a reply to a counterclaim before the reply has been filed.

City of Rochester v. Chiarella · filed 1985-05-02(b)

A 3211 (b) motion may be addressed to a reply but that motion was not available to the Sercus because there had been no reply to their counterclaim and the motion could not be used to anticipate defenses based upon the general denials of liability alleged in the complaint.

A court may not convert a CPLR 3211(b) motion to dismiss affirmative defenses into a summary judgment motion without notice to the parties, particularly when the moving papers lack firsthand factual support.

Harlem Savings Bank v. Independent Leasing Corp. · filed 1985-10-10(b)

In this action to recover moneys due under a loan and security agreement, plaintiff, which had advanced sums of money to finance a car leasing operation, moved, pursuant to CPLR 3211 (b), to dismiss the affirmative defenses based on lack of consideration, unconscionability, discharge of obligation and release set up by the defendant borrower and guarantors. Without notice to the parties, however, Special Term converted the motion into one for summary judgment. That the court considered the matter so is obvious, as reflected by its observation that "it was incumbent upon defendants to produce proof in evidentiary form sufficient to raise an issue of fact as to the facts pleaded.” Moreover, the motion was supported only by an affirmation from an attorney who, although he had access to a legal file and other documentation, lacked personal knowledge of the facts. In such circumstances it was improper to treat the motion as one for summary judgment.

Section 3211 (b) permits a motion to dismiss a defense in an answer; such a motion is premature when no answer has been filed.

Ausderau v. State · filed 1985-12-23(b)

Without more, such a motion is generally available to dismiss a defense contained in the answer, while here we have nothing more than a motion to dismiss pursuant to CPLR 3211 (a) (7), filed in lieu of an answer. Thus, that aspect of the cross motion is at best premature and is denied.

A pre-answer motion to dismiss an article 78 petition under CPLR 7804 (f) is treated as a CPLR 3211 motion addressed to the pleadings, with the petition’s allegations accepted as true and viewed favorably to the petitioner.

Cahill v. Public Service Commission · filed 1986-01-23

Since respondents elected not to submit an answer prior to moving for dismissal of the petition by setting forth objections in point of law as provided for in CPLR 7804 (f), their motion is one in the form of a CPLR 3211 motion addressed to the pleadings (see, Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 102-103; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7804:7, p 507). Examining the petition and accepting the facts alleged as true, and considering them in the light most favorable to petitioner, as we must, we find that the article 78 petition states a claim for relief (see, Matter of Board of Educ. v Allen, 32 AD2d 985).

Section 3211(b) lets a plaintiff move immediately to strike a personal-jurisdiction defense pleaded in the answer.

Claerbaut v. East Long Island Hospital · filed 1986-02-24(b)

Prejudice does not accrue from placement of the defense in the answer, for the plaintiff can immediately move to strike the defense under CPLR 3211 (b).

A motion to dismiss affirmative defenses may be denied when their viability depends on unresolved issues of fact.

V.R.W., Inc. v. Weiss · filed 1986-03-03(b)

The viability of the defendant Weiss’s affirmative defenses rests on the same issues of fact, such that that branch of the plaintiff’s motion which sought dismissal of these defenses was also correctly denied.

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

Feinstein v. Levy · filed 1986-06-16(b)

CPLR 3211 (b) permits a defense to be dismissed on the ground that a defense is not stated or has no merit.

Section 3211(b) does not permit dismissal of affirmative defenses when factual issues about those defenses must be resolved at trial.

Gibson v. American Export Isbrandtsen Lines, Inc. · filed 1987-02-17(b)

While we recognize that it is defendant’s burden to establish at trial that plaintiff was contributorily negligent and, as to the release, there is a heavy burden imposed on the shipowner, especially since seamen are wards of admiralty— cestuis que trustent — in a fiduciary relationship with the shipowner — these factual issues must await trial. They cannot be finally resolved on the papers before Special Term.

CPLR 3211 (b) permits dismissal of an affirmative defense when the pleadings, affidavits and exhibits establish as a matter of law that there is no defense.

Bailey v. Nationwide Mutual Fire Insurance · filed 1987-10-15(b)

The pleadings, affidavits and exhibits were sufficient to justify a finding as a matter of law that there was no defense. Accordingly, the dismissal of the two affirmative defenses relating to plaintiffs’ failure to provide proof of loss within 60 days of the demand was proper pursuant to a motion to dismiss pursuant to CPLR 3211 (b) and no different result would be reached if Supreme Court, as defendant contends, treated the motion as one for summary judgment.

Under CPLR 3211(a)(3) and (5), infancy and incompetency are affirmative defenses that the respondent must plead and prove.

Karan v. Peterson · filed 1987-12-15(a)(3), (5)

At the outset the court notes that infancy and incompetency are affirmative defenses which must be pleaded and proved. (CPLR 3211 [a] [3], [5].) Neither was pleaded nor proved at the hearing. It is not the petitioner who must plead and prove competency and capacity.

On a motion to dismiss an affirmative defense, the defendant’s allegations must be treated as true and the defendant receives all reasonable inferences from the submitted proof.

Grunder v. Recckio · filed 1988-03-04(b)

On a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof (see, Siegel, NY Prac § 269, at 327).

A party moving under CPLR 3211(b) to dismiss an affirmative defense must demonstrate that the defense is without merit.

Price v. Cella's Confections · filed 1988-03-14(b)

The plaintiff has failed to demonstrate that the defense is without merit (see, CPLR 3211 [b]).

CPLR 3211(e) permits only one motion to dismiss under subsection (a)(7) in these circumstances.

Reilly v. Prentice · filed 1988-06-06(e)

Under these circumstances, pursuant to CPLR 3211 (e), only one motion to dismiss pursuant to CPLR 3211 (a) (7) may be ...made.

Section 3211(b) requires a court considering dismissal of an affirmative defense to determine whether the defense has any legal or factual basis.

Corcoran v. Becker · filed 1988-09-08(b)

The standard of review on a motion to dismiss an affirmative defense pursuant to CPLR 3211 (b) is akin to that used under CPLR 3211 (a) (7), i.e., whether there is any legal or factual basis for the assertion of the defense.

On a motion under CPLR 3211(b), an affirmative defense receives a liberal construction and should not be dismissed if its availability is in doubt.

Becker v. Elm Air Conditioning Corp. · filed 1988-10-31(b)

Upon a motion to dismiss a defense pursuant to CPLR 3211 (b), the defendant is entitled to the benefit of every reasonable intendment of the pleading (see, Karl v Salkins, 283 App Div 470), which is to be liberally construed (see, First Natl. City Bank v Valentine, 61 Misc 2d 554); and, if there is any doubt as to the availability of a defense, it should not be dismissed (see, Duboff v Board of Higher Educ., 34 AD2d 824).

On a CPLR 3211 motion to dismiss affirmative defenses, courts liberally construe the pleading, assume its allegations are true, and give its statements every fair implication.

Corcoran v. National Union Fire Insurance · filed 1988-09-08

We have examined the first, seventh and eighth affirmative defenses and, while not entirely free from doubt, in view of the fact pleadings must be liberally construed, their allegations assumed to be true and deemed to allege whatever can be implied from the statements ... therein by fair intendment ... we do not disturb that portion of the Supreme Court’s order denying plaintiff’s motion for dismissal as to these defenses.

A motion to dismiss affirmative defenses under CPLR 3211(b) puts the complaint’s legal sufficiency at issue and may result in dismissal of the complaint without a cross motion.

Fireman's Fund Insurance v. National Westminster Bank U.S.A. · filed 1988-10-05(b)

Furthermore, a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b) searches the record and puts in issue the legal sufficiency of the complaint itself and, if found to be legally insufficient, the complaint may be dismissed even though no cross motion to dismiss has been made (Saler v City of New York, 96 AD2d 583, 584; Rand v Hearst Corp., 31 AD2d 406, 408, affd 26 NY2d 806).

Section 3211(b) permits a court to strike affirmative defenses that lack merit.

Gotham Air Conditioning Service, Inc. v. Heitner · filed 1989-03-31(b)

Motion by plaintiff for an order, pursuant to CPLR 3211 (b), dismissing the affirmative defenses in the answer is granted only as to defendants Norman e Breitstein and Heitner & Breitstein, a general partnership. ... Thus, each of the affirmative defenses is without merit and, plainly, should not have been interposed in the answer. Accordingly, the affirmative defenses are stricken.

A party moving under CPLR 3211(b) to dismiss a defense must make a prima facie showing that dismissal is warranted.

County of Nassau ex rel. Nassau County Planning Commission v. Eagle Chase Associates · filed 1989-06-07(b)

As to the defendant’s second separate and distinct partial defense, the plaintiff has not made a prima facie showing that this defense should be dismissed.

Section 3211(b) permits dismissal of an affirmative defense that is insufficient as a matter of law.

Chemical Bank v. William IseLin & Co. · filed 1990-06-07(b)

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered July 18, 1989, which granted plaintiffs motion to the extent of dismissing defendant’s third affirmative defense pursuant to CPLR 3211 (b) and vacating defendant’s deposition notice of plaintiffs attorney, and denied said motion to the extent it sought to vacate defendant’s deposition notices of two nonparty bookkeepers, to suppress defendant’s use of certain records, and to terminate all further discovery by defendant, unanimously affirmed, without costs. ... As the restructuring agreement merely provided for repayment of a preexisting debt, the defense bears no relationship to the reality of plaintiffs position as tax creditor of parties other than defendant and is insufficient as a matter of law (Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc., 88 AD2d 461, 466-467).

CPLR 3211(e) permits only one CPLR 3211(a) motion to dismiss, but does not bar a later motion on forum non conveniens grounds under CPLR 327.

Harp v. Malyn · filed 1990-10-25(e)

While plaintiff correctly argues that Becher was only entitled to one CPLR 3211 (a) motion to dismiss (see, CPLR 3211 [e]), he was not foreclosed from bringing a second motion on forum non conveniens grounds pursuant to CPLR 327.

Section 3211(b) permits a court to strike an affirmative defense of lack of a justiciable controversy when the parties’ competing ownership claims show that a controversy exists.

Fischer v. Deitsch · filed 1990-12-24(b)

It is evident that a controversy exists since the defendants third-party plaintiffs assert that they own a part of the Corporation while Fischer maintains that they do not. Therefore, the court erred in failing to dismiss the affirmative defense of lack of a justiciable controversy.

Under CPLR 3211(b), a party seeking to dismiss defenses must establish that they have no merit.

Volin v. City Beach Catering Corp. · filed 1991-04-15(b)

The plaintiff has failed to establish that the remaining defenses asserted in the defendant’s answer have no merit (see, CPLR 3211 [b]).

On a CPLR 3211 motion, an ambiguity in a guaranty may allow affirmative defenses to remain at the pleading stage.

BT Commercial Corp. v. Blum · filed 1991-07-11

Yet, it is significant that plaintiff’s motion is for dismissal under CPLR 3211 and not one for summary judgment pursuant to CPLR 3212. ... Thus, at least for pleading purposes, they are entitled to interpose the fifth and sixth affirmative defenses.

On a motion to strike defenses under CPLR 3211(b), a defense should survive if there is any doubt about its availability.

Klapper v. Shapiro · filed 1992-04-24(b)

The pleader is entitled to the benefit of every reasonable intendment of the defenses and, if there is any doubt as to the availability of a defense, it should not be dismissed.

Section 3211(b) permits dismissal of affirmative defenses that merely duplicate counterclaims.

Carl Zeiss, Inc. v. Micro Med Instruments, Inc. · filed 1992-10-26(b)

The defendant’s third and fourth affirmative defenses should have been dismissed since they are not in the nature of defenses, but rather duplicative counterclaims for unpaid commissions (see, CPLR 3211 [b]).

Section 3211(b) permits dismissal of affirmative defenses when the record shows that they cannot defeat liability.

Diagnostic Mobile Imaging, Inc. v. Salamanca District Hospital · filed 1993-03-12(b)

The court should have granted the motion to dismiss the four affirmative defenses. ... Thus, none of defendant’s affirmative defenses can be asserted against liability for services already rendered under the contract.

Section 3211(b) requires a party moving to dismiss a defense as meritless to prove that the defense lacks merit.

Katz Park Avenue Corp. v. Olden · filed 1993-05-18(b)

In order to determine whether this defense should be dismissed based upon the second ground set forth in CPLR 3211 (b), i.e., that it is without merit, the factual circumstances must be examined. On this motion, petitioner movant has the burden of proving that this defense is without merit.

CPLR 3211(e) does not preclude another motion to dismiss when service of a second petition commences a new action.

Mark-Holli Realty, Inc. v. New York City Loft Board · filed 1994-06-02(e)

Petitioner’s remaining argument that CPLR 3211 (e) precludes respondent from making an additional motion under CPLR 3211 (a) is likewise without merit, since petitioner sought to commence a new action by service of its second petition, and hence, the respondent is not precluded from moving again.

CPLR 3211 limits a party to one motion to dismiss; a second motion is denied without consideration of its merits.

Spa Realty Associates v. Springs Associates · filed 1995-03-02

Additionally, CPLR 3211 limits a party to one motion to dismiss. This dismissal motion is the second one made under CPLR 3211 and, as such, that part of the motion was correctly denied without consideration of the merits.

A prior CPLR 3211 motion does not bar a later motion challenging the sufficiency of the complaint, which may be raised at any time.

Bernstein v. 1995 Associates · filed 1995-07-27

Plaintiffs’ argument that defendants, having already made a multi-ground CPLR 3211 motion, are barred from making another such motion, is without merit as the sufficiency of the complaint can be raised at any time (see, McLearn v Cowen & Co., 60 NY2d 686, 689; Daley v Related Cos. 210 AD2d 76; Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172, 178).

CPLR 3211(e) bars a repeated motion to dismiss after an earlier motion was denied.

Facundo v. Pressman · filed 1996-11-07(e)

Not only did defendant and third-party plaintiff fail to submit any new evidence or to cite to any change in the law (see, Weiss v Flushing Natl. Bank, 176 AD2d 797), but the motion was also barred by CPLR 3211 (e) (see, McLearn v Cowen & Co., 60 NY2d 686).

On a motion to dismiss a defense, the movant must show that the defense cannot be maintained; if the movant shows it lacks factual merit, the pleader must produce competent evidence of a triable issue.

Palais Partners v. Vollenweider · filed 1997-04-03(b)

Whether the motion is based on lack of legal basis or lack of substantial merit, the movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained. If the movant meets its burden of showing that the defense lacks factual merit, the burden then shifts to the pleader to show, by competent evidence, the existence of a triable factual issue respecting the defense’s merit.

A motion to dismiss an affirmative defense under CPLR 3211 may be made any time before or at trial.

Albin v. First Nationwide Network Mortgage Co. · filed 1998-03-09

Nor did the plaintiffs’ failure to move for dismissal of the defense until approximately 18 months after it had been asserted, constitute a waiver. Under CPLR 3211, a motion seeking to dismiss a defense may be made at any time prior to, or at the time of trial (see, Sadif, S.A. v Burnham & Co., 20 AD2d 777).

CPLR 3211 permits a preanswer motion to dismiss alongside a motion to intervene, but a petition that states a valid cause of action cannot be dismissed for failure to state a claim.

Rent Stabilization Ass'n v. New York State Division of Housing & Community Renewal · filed 1998-12-17

Whereas the City could have moved to intervene and simultaneously make a preanswer motion to dismiss pursuant to CPLR 3211 and 7804 (f), it could not “limit” its intervention. Moreover, as conceded by respondent, the petition does state a valid cause of action against it.

Section 3211(e) permits only one motion to dismiss for failure to state a cause of action under subsection (a)(7).

Miller v. Schreyer · filed 1999-01-05(e)

CPLR 3211 (e) permits only one motion to dismiss on the basis of CPLR 3211 (a) (7) for failure to state a cause of action (McLearn v Cowen & Co., 60 NY2d 686, 689).

Under CPLR 3211(b), an affirmative defense should not be dismissed when a factual issue prevents the court from determining whether the defense applies.

Wassner v. Yaakov · filed 2002-12-23(b)

Furthermore, an issue of fact exists as to whether General Obligations Law § 5-701 (a) (10) may apply to the parties’ arrangement. Accordingly, the Supreme Court correctly denied the plaintiff’s motion to dismiss the affirmative defense of the statute of frauds.

On a motion to dismiss affirmative defenses under CPLR 3211(b), the court views the answer’s allegations in the light most favorable to the defendant and asks whether they state cognizable defenses.

182 Fifth Avenue, LLC v. Design Development Concepts, Inc. · filed 2002-12-24(b)

The motion court properly declined to dismiss the subject affirmative defenses and counterclaims pursuant to CPLR 3211 (b), since the allegations of the answer, viewed, as they must be in this procedural context, in the light most favorable to defendants (see Grunder v Recckio, 138 AD2d 923), state cognizable defenses and counterclaims.

Section 3211(e) permits a second preanswer motion to dismiss when intervening law provides a ground that could not have been raised in the first motion.

Southbridge Towers, Inc. v. Frymer · filed 2004-07-27(e)

Because the Court of Appeals decided Landaverde on June 3, 2004 — respondent’s first motion to dismiss was made on March 25, 2004, and decided on April 29, 2004 — respondent’s argument is based on new law and can be presented to the court in a second motion to dismiss, thus providing an exception to CPLR 3211 (e).

A failure-to-state-a-claim defense remains available until the claimant prevails on summary judgment or at trial and is not subject to a motion to dismiss the defense.

Ring v. Arts International, Inc. · filed 2004-11-05(b)

Respondent’s first affirmative defense of failure to state a claim is not subject to a motion to dismiss, as this defense remains open to respondent throughout the action, until petitioners prevail through summary judgment or trial.

A pre-answer motion to dismiss under CPLR 3211(a)(7) cannot resolve a usury defense that requires facts yet to be developed.

Hochman v. LaRea · filed 2005-01-31(a)(7)

The appellant asserted in a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) that one of the transactions underlying this action involved a criminally usurious loan. ... Here, the appellant’s contention is premature as the action is based upon an alleged oral agreement. The appellant may assert the affirmative defense of usury in its answer and attempt to develop facts to support such a defense.

Section 3211(b) permits a motion to dismiss a defense that is inadequately pleaded or lacks merit, including by challenging its factual foundation.

Deep Blue Ventures, Inc. v. Manfra, Tordella & Brookes, Inc. · filed 2004-11-30(b)

A motion to dismiss a defense on the ground that a defense either is not stated or has no merit (CPLR 3211 [b]) is not limited to defectively pleaded defenses, but may be used to destroy the factual foundation on which the defense depends (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:39).

A party moving under CPLR 3211(b) to dismiss an affirmative defense bears the burden of showing that the defense is without merit as a matter of law.

Santilli v. Allstate Insurance · filed 2005-06-10(b)

Plaintiff moved to dismiss the affirmative defenses pursuant to CPLR 3211 (b) and therefore bore the burden of establishing that the affirmative defenses were without merit as a matter of law (see Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [1988]).

Section 3211(a)(5) requires courts to accept the complaint's allegations as true, resolve reasonable inferences for the plaintiff, and consider supporting affidavits to remedy defects or preserve potentially meritorious claims.

AAA Viza, Inc. v. Business Payment Systems, LLC · filed 2007-03-27(a)(5)

“On a CPLR 3211 motion made against a complaint,” including a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint based on the statute of frauds, “a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998], citing Sanders v Winship, 57 NY2d 391, 394 [1982]).

Subsection (b) permits dismissal of a defense that lacks merit or states no defense, with pleadings construed liberally and facts alleged accepted as true.

1422 Corp. v. Rosenfeld · filed 2007-08-23(b)

CPLR 3211 (b) permits dismissal of a defense that lacks merit or where none is stated; however, the pleadings should be afforded a liberal construction and the benefit of every possible inference, and the court should accept as true the facts alleged therein.

On a CPLR 3211 motion, a defendant seeking dismissal based on abandonment of an easement must conclusively establish that defense as a matter of law.

Seven Springs, LLC v. Nature Conservancy · filed 2008-02-13

While the respondents submitted evidence that any implied private easement was voluntarily abandoned by the plaintiff or its predecessor (see Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39-40 [1986]), the respondents failed to conclusively establish this defense as a matter of law for the purposes of a motion to dismiss (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Under CPLR 3211(b), a court should not strike an affirmative defense when material facts remain unresolved; the movant must show that the defense lacks merit as a matter of law.

Faulkner v. City of New York · filed 2008-01-29(b)

When material issues of fact are unresolved, a court should not strike a defense (see Lopez v 121 St. Nicholas Ave. H.D.F.C., 28 AD3d 429 [2006]).

Section 3211(b) governs a motion asserting that affirmative defenses lack merit, even if the motion does not cite a specific CPLR provision.

132132 LLC v. Strasser · filed 2008-03-17(b)

The petitioner’s motion does not cite the specific provision of the CPLR pursuant to which dismissal is sought. Since the petitioner has alleged that the first and second affirmative defenses lack merit, the court will deem that said motion is made pursuant to CPLR 3211 (b).

CPLR 3211(b) permits dismissal of an affirmative defense shown to be without merit as a matter of law.

DiCarlo Distributors, Inc. v. Golden Krust · filed 2008-10-07(b)

The Supreme Court, however, improperly denied that branch of the plaintiffs motion which was to dismiss the defendant’s fifth affirmative defense, alleging that the plaintiff lacks the proper license to sell food products, since the plaintiff demonstrated that the defense was without merit as a matter of law (see CPLR 3211 [b]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]).

Under CPLR 3211(b), unresolved factual issues can preclude dismissal of affirmative defenses.

Fireman's Fund Insurance v. Farrell · filed 2008-12-16(b)

The same issues of fact precluded the court from granting those branches of the plaintiffs cross motion which were pursuant to CPLR 3211 (b) to dismiss the second, seventh, and twelfth affirmative defenses, which incorporate the documentary evidence as it relates to the issues of waiver and proximate cause (see Fleckenstein v Nehrbas, 21 AD2d 889 [1964]).

In an RPTL article 7 proceeding, a respondent need not meet CPLR 3211(e)'s 60-day deadline, but a dismissal motion may be denied when delay prejudices the petitioner.

Stop & Shop Companies, Inc. v. Assessor of New Rochelle · filed 2011-05-25(e)

The persuasive Third Department authority (one of which cases, Village Square, was cited with approval by the Second Department in Landesman, and again this year in Consolidated Edison v Pleasant Val. [supra]) is that, while RPTL 712 relieves a respondent from the duty of answering, and thus abrogates the duty to move within the 60-day period set forth in CPLR 3211 (e), it does not bar a petitioner from objecting to generally untimely motions to dismiss pursuant to CPLR 3211 (a), where such dilatory behavior worked to prejudice the petitioner. Here, where respondent was surely aware that a nonowner had commenced the instant proceedings; where many years had passed from the commencement of the proceeding; and where respondent failed to move until the very eve of trial, this court has no problem finding that respondent prejudiced petitioner by moving for dismissal on standing grounds at this late date, and that such motion should be denied as untimely.

Section 3211(b) permits dismissal of an affirmative defense that has no merit.

Maybaum v. Maybaum · filed 2011-11-01(b)

Since the doctrines of res judicata, collateral estoppel, and equitable estoppel do not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211 (b) to dismiss the plaintiffs fourth affirmative defense alleging that the defendant’s counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.

A plaintiff may obtain dismissal of an affirmative defense by establishing that it is without merit as a matter of law.

Coyle v. Lefkowitz · filed 2011-11-29(b)

The Supreme Court erred in denying the unopposed branch of the plaintiffs’ motion which was pursuant to CPLR 3211 (b) to dismiss the second affirmative defense, as the plaintiffs established that this affirmative defense was without merit as a matter of law.

Section 3211(b) requires a plaintiff seeking to dismiss affirmative defenses to show that they are without merit as a matter of law.

Mallory v. Allstate Insurance · filed 2011-12-06(b)

Accordingly, the plaintiff did not demonstrate that the defenses were without merit as a matter of law (see CPLR 3211 [b]; Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2011]).

Under CPLR 3211(b), a plaintiff who demonstrates that an affirmative defense lacks merit as a matter of law is entitled to its dismissal.

Palumbo v. Carey · filed 2011-12-06(b)

Accordingly, the plaintiff sustained his burden of demonstrating that the serious injury threshold defense is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 147-148 [2008]), thereby warranting the dismissal of that affirmative defense pursuant to CPLR 3211 (b).

A plaintiff moving to dismiss an affirmative defense under CPLR 3211(b) must show that the defense lacks merit as a matter of law because it does not apply to the case or fails to state a defense.

MBIA Insurance v. Countrywide Home Loans, Inc. · filed 2012-01-03(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 because it either does not apply under the factual circumstances of the case or fails to state a defense.

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

Chestnut Realty Corp. v. Kaminski · filed 2012-05-30(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]). ... Here, the Supreme Court should have granted that branch of the plaintiffs cross motion which was to dismiss the third affirmative defense, which asserted that the complaint failed to state a cause of action, since the complaint was sufficient to state a cause of action.

CPLR 3211(b) permits dismissal of affirmative defenses that plead only conclusions of law without supporting facts, with leave to replead them in proper form.

Moran Enterprises, Inc. v. Hurst · filed 2012-06-20(b)

The Supreme Court should have granted those branches of MEI’s motion which were to dismiss Hurst’s affirmative defenses numbered 2, 3, 5, 7, 10, 12, 13, 14, and 15, since they merely pleaded conclusions of law without any supporting facts (see Morgenstern v Cohon, 2 NY2d 302 [1957]; Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; 170 W. Vil. Assoc. v G & E Realty, Inc., 56 AD3d 372, 372-373 [2008]; Plemmenou v Arvanitakis, 39 AD3d 612, 613 [2007]; Petracca v Petracca, 305 AD2d 566, 567 [2003]; Glenesk v Guidance Realty Corp., 36 AD2d 852, 853 [1971]), albeit without prejudice to Hurst’s right to replead those affirmative defenses in proper form (see Consolidated Constr. Group, LLC v Bethpage Union Free School Dist., 39 AD3d 792, 796 [2007]; Rosenthal v Allstate Ins. Co., 248 AD2d 455, 456 [1998]; Bentivegna v Meenan Oil Co., 126 AD2d 506, 508 [1987]).

A plaintiff cannot use CPLR 3211(b) to strike a defense of failure to state a cause of action, because that would test the sufficiency of the plaintiff’s own claim.

Mazzei v. Kyriacou · filed 2012-09-26(b)

The Supreme Court properly denied that branch of the plaintiffs motion which was to dismiss the third affirmative defense, alleging failure to state a cause of action. “[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim” (Butler v Catinella, 58 AD3d 145, 150 [2008]; see CPLR 3211 [a] [7]).

A party seeking to dismiss an affirmative defense under CPLR 3211(b) must show that the defense lacks merit as a matter of law.

Van Wert v. Randall · filed 2012-11-01(b)

While the defense may be limited, plaintiff did not meet her burden of showing that the defense lacked merit as a matter of law (see CPLR 3211 [b]; Metz v State of New York, 86 AD3d 748, 752 [2011]).

Section 3211 permits a preanswer motion to dismiss on immunity grounds.

Avila v. State · filed 2013-01-08

While there is nothing in CPLR 3211 that precludes seeking dismissal of an action on the ground of immunity in a preanswer motion, the Third Department has held that a claim of at least one type of qualified privilege is an affirmative defense that “does not lend itself to a preanswer motion to dismiss pursuant to CPLR 3211 (a).” (Wilcox v Newark Val. Cent. School Dist., 74 AD3d 1558, 1562 [3d Dept 2010], quoting Demas v Levitsky, 291 AD2d 653, 661 [2002], lv dismissed 98 NY2d 728 [2002]).

CPLR 3211(b) permits dismissal of an affirmative defense only when it is without merit as a matter of law.

Ramanathan v. Aharon · filed 2013-08-14(b)

The plaintiffs’ submissions did not establish that the affirmative defense alleging that the fence was located on the defendants’ property was “without merit as a matter of law” (Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]; see CPLR 3211 [b]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]) and, thus, the Supreme Court should have denied that branch of the plaintiffs’ motion which was pursuant to CPLR 3211 (b) to dismiss that affirmative defense.

A defendant who has not moved to dismiss particular causes of action is not precluded from moving to dismiss them later.

SUNRISE NURSING HOME, INC. v. FERRIS, MARION · filed 2013-11-15(e)

We note in particular that, because defendant did not move against those causes of action, he should not be precluded from subsequently doing so (see CPLR 3211 [e]).

Section 3211(e) does not preclude a later motion to dismiss causes of action the defendant did not previously move against.

Sunrise Nursing Home, Inc. v. Ferris · filed 2013-11-15(e)

because defendant did not move against those causes of action, he should not be precluded from subsequently doing so (see CPLR 3211 [e]).

A plaintiff moving under CPLR 3211(b) to strike an affirmative defense must show that the defense is without merit as a matter of law.

30 West 130th Street Corp. v. White · filed 2014-09-03(b)

On a motion to strike an affirmative defense under CPLR 3211 (b), the plaintiff “bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law’ ” (Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]).

A postanswer motion to dismiss based on documentary evidence is untimely under CPLR 3211(e).

Goncalves v. Soho Village Realty, Inc. · filed 2015-03-16(e)

Respondents’ postanswer motion to dismiss the illegal lockout proceeding based on documentary evidence (CPLR 3211 [a] [1]) should have been denied as untimely (see CPLR 3211 [e]; Masada Universal Corp. v Goodman Sys. Co., 121 AD2d 518 [1986]; see also Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 257 [2012]).

A plaintiff moving to dismiss an affirmative defense under section 3211(b) bears the burden of showing that the defense is without merit as a matter of law.

Granite State Insurance v. Transatlantic Reinsurance Co. · filed 2015-10-15(b)

In moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 541 [1st Dept 2011]).

Res judicata and collateral estoppel defenses are waived unless raised as affirmative defenses or by a CPLR 3211 (a) (5) motion.

Country-Wide Insurance v. Gotham Medical, P.C. · filed 2015-11-20(e)

However, such defenses must be raised as affirmative defenses or by a motion under CPLR 3211 (a) (5), or the defenses are waived (see CPLR 3211 [e]; Mayers v D'Agostino, 58 NY2d 696, 698 [1982]).

A motion under CPLR 3211(b) to dismiss an affirmative defense is not subject to the summary judgment deadline, and the movant must show that the defense lacks merit as a matter of law.

Zarnoch v. Luckina · filed 2017-03-24(b)

To the extent that the cross motion sought relief pursuant to CPLR 3211 (b), it was not subject to the time limit for summary judgment motions under CPLR 3212 (a) (see Siegel, NY Prac § 272 at 470 [5th ed 2011]). The cross motion was nevertheless properly denied because plaintiff failed to meet his burden of establishing that the affirmative defense was without merit as a matter of law (see Bank of N.Y. v Penalver, 125 AD3d 796, 797 [2015]).

Under CPLR 3211(b), a party seeking to dismiss an affirmative defense must show that the defense is not stated or has no merit.

Mejia-Gonzalez v. Storch · filed 2017-03-09(b)

Plaintiff failed to show that the judicial estoppel defense “is not stated or has no merit” (CPLR 3211 [b]).

A party moving to dismiss affirmative defenses bears a heavy burden to show that they lack merit as a matter of law.

DeThomasis v. Viviano · filed 2017-03-09(b)

Plaintiffs, as the parties seeking to dismiss the affirmative defenses, bore the heavy burden of demonstrating that the defenses lacked merit as a matter of law (see CPLR 3211 [b]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 323 [1995]; Van Wert v Randall, 100 AD3d 1079, 1081 [2012]).

Under CPLR 3211(b), an affirmative defense stated only as an unsupported legal conclusion is subject to dismissal, though an opposing affidavit may cure the deficiency.

Kachalsky v. Nesheiwat · filed 2017-03-31(b)

Affirmative defenses pleaded as conclusions of law, which are not supported by factual allegations, are insufficient and subject to dismissal ( see Moran Enters., Inc. v Hurst , 96 AD3d 914 [2012]; Plemmenou v Arvanitakis , 39 AD3d 612 [2007]). The deficiencies in defendant's affirmative defenses 1 through 5, 8 and 9 were remedied by the affidavit submitted in opposition to plaintiff's motion.

CPLR 3211(b) does not give a party standing to move to dismiss defenses asserted against another plaintiff.

Amelius v. Grand Imperial LLC · filed 2017-09-11(b)

While CPLR 3211 (b) does not contain the same limiting language as CPLR 3211 (a) it is a similar statutory provision. Further, courts have regularly held that parties do not have standing to move for relief that properly belongs to another party, except where a statute explicitly allows any party to make such a motion. ... Thus, the City’s motion under motion sequence No. 003 is denied.

CPLR 3211(b) permits a party to seek dismissal of one or more defenses because a defense is not stated or lacks merit, with the plaintiff bearing the burden and factual assertions accepted as true.

Wells Fargo Bank, N.A. v. Rios · filed 2018-04-18(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." When moving to dismiss, the plaintiff 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" ( Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 748 [internal quotation marks omitted]; see Bank of N.Y. v Penalver, 125 AD3d 796, 797). On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true ( see Bank of N.Y. v Penalver, 125 AD3d at 797; Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d at 748-749). Moreover, 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).

Section 3211(b) permits dismissal of affirmative defenses.

Horvath v. High Peaks Sand, Gravel & Mins., LLC · filed 2018-08-01(b)

Plaintiff also moves for the dismissal of the defenses alleged in defendants' Answer ( see CPLR 3211 [b]). ... Accordingly, plaintiff is entitled to dismissal of the first, third, fourth, fifth and sixth affirmative defenses alleged in the Answer.

Section 3211(b) permits dismissal of an affirmative defense that lacks merit as a matter of law, but a failure-to-state-a-cause-of-action defense cannot be stricken under it when triable issues remain.

Jacob Marion, LLC v. Jones · filed 2019-01-30(b)

The plaintiff failed to demonstrate that the defendants' affirmative defenses lack merit [*2]as a matter of law, as required under CPLR 3211(b) ( see Gonzalez v Wingate at Beacon , 137 AD3d 747, 747; Bank of N.Y. v Penalver , 125 AD3d 796, 797). With respect to the defendants' affirmative defense alleging failure to state a cause of action, "[n]o motion . . . lies under CPLR 3211(b) to strike th[is] defense . . . as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" ( Mazzei v Kyriacou , 98 AD3 1088, 1089 [internal quotation marks omitted]; see Butler v Catinella , 58 AD3d 145, 151).

A motion to dismiss for failure to state a cause of action may be made at any time.

Goldberg v. Torim · filed 2020-03-05(e)

Defendant's motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action was properly decided by the motion court, as such motion may be made at any time ( see CPLR 3211(e); see e.g. McMahon v Cobblestone Lofts Condominium , 161 AD3d 536 [1st Dept 2018]).

Section 3211(e) prohibits successive motions to dismiss the same pleading.

Robert Owen Lehman Found., Inc. v. Wien · filed 2021-08-26(e)

With respect to Rieger, we conclude that the motion violated the single motion rule. Successive motions to dismiss a pleading pursuant to CPLR 3211 are prohibited ( see CPLR 3211 [e]; Held v Kaufman , 91 NY2d 425, 430 [1998]) and, in the motion at issue in appeal No. 1, Rieger had already sought to dismiss the action against it pursuant to CPLR 3211.

Section 3211(b) places a heavy burden on a party seeking to dismiss affirmative defenses to show that they lack merit as a matter of law.

Umoh v. Doolity-Mills · filed 2023-03-23(b)

Plaintiffs, as the parties seeking to dismiss affirmative defenses on the ground that they have no merit ( see CPLR 3211 [b]), failed to satisfy their "heavy burden of demonstrating that the defenses lacked merit as a matter of law" ( DeThomasis v Viviano , 148 AD3d 1338, 1339 [3d Dept 2017]; see New York Univ. v Continental Ins. Co. , 87 NY2d 308, 323 [1995]).

Under CPLR 3211(b), an affirmative defense that the complaint fails to state a cause of action should not be struck from an answer; even if it may be struck, dismissal requires all other affirmative defenses to be legally insufficient.

Tribbs v. 326-338 E 100th LLC · filed 2023-04-13(b)

The first affirmative defense (that the complaint fails to state a cause of action) should not have been dismissed. First, "[t]he assertion of that defense in an answer should not be subject to a motion to strike" ( Riland v Todman & Co., 56 AD2d 350, 353 [1st Dept 1977]). Second, even if it is subject to a motion to strike, "such a defense may be dismissed only if all the other affirmative defenses are found to be legally insufficient" ( Raine v Allied Artists Prods., 63 AD2d 914, 915 [1st Dept 1978]), which is no longer the case.

On a motion to dismiss a defense under CPLR 3211(b), the court views the answer’s allegations in the respondent’s favor and liberally construes the pleading.

Soufer Family LLC v. Sprague · filed 2023-09-28(b)

Nevertheless, on landlord's CPLR 3211(b) motion, the allegations set forth in the answer must be viewed in the light most favorable to the respondent and the respondent is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed ( see Pugh v New York City Hous. Auth ., 159 AD3d 643 [2018]).

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

E.E. Cruz & Co., Inc. v. Starr Surplus Lines Ins. Co. · filed 2024-08-20(b)

Applying these principles here, Insured fails to meet its burden. The fifth affirmative defense is neither patently devoid of merit, nor palpably insufficient (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499 [1st Dept 2010]]).

Under CPLR 3211(b), a plaintiff seeking to dismiss an affirmative defense for lack of merit bears a heavy burden to show that the defense lacks merit as a matter of law.

Places in Saratoga, LLC v. Izzo · filed 2024-08-21(b)

A plaintiff seeking to dismiss a defense for lack of merit bears a heavy burden to demonstrate that the defense lacks merit as a matter of law (Umoh, 214 AD3d at 1227; see also DeThomasis, 148 AD3d at 1339).

Section 3211(b) permits dismissal of affirmative defenses that are unsupported by the record.

Larrea v. ODonnell · filed 2024-08-27(b)

As plaintiff properly argues, the City did not oppose or even address the second branch of the motion where plaintiff seeks to dismiss the defendants’ affirmative defenses of comparative negligence, emergency defense, and lack of seatbelt. ... There is also no suggestion on this record that the City vehicle was engaged in any type of emergency response. Accordingly, plaintiff’s is granted.

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

20W 33rd Bldg. LLC v. Best Brand Home Prods. Inc · filed 2024-09-09(b)

On a motion to dismiss affirmative defenses and/or sever the affirmative defenses raised and counterclaims asserted by Respondent pursuant to CPLR 3211(b) and 3211(a)(6) Petitioner bears the burden of demonstrating those defenses are without merit as a matter of law ( 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick , 90 AD3d 541, 541-42 [1st Dep't 2011]).

Section 3211(b) permits dismissal of affirmative defenses that plead only legal conclusions without supporting facts.

Simply Funding, LLC v. Jim Dan Dee Seafood LLC · filed 2024-09-09(b)

Here, Defendants’ affirmative defenses plead conclusions of law without any supporting facts. ... Thus, Defendants’ remaining affirmative defenses are dismissed.

Section 3211(b) requires a party seeking to dismiss affirmative defenses to show that they lack merit as a matter of law.

Bull Hill, LLC v. HFZ Member RB Portfolio LLC · filed 2024-09-16(b)

As to the remaining affirmative defenses, however, Plaintiffs have failed to meet their burden of demonstrating that these affirmative defenses are without merit as a matter of law (Granite State, 132 AD3d at 481).

Section 3211(b) requires the plaintiff moving to dismiss an affirmative defense to show that the defense is without merit as a matter of law.

558 Seventh Ave Corp. v. Times Sq Photo, Inc. · filed 2024-09-17(b)

Further, on such a motion to dismiss, the plaintiff has the burden of "demonstrating that the defenses are without merit as a matter of law" (534 E. 11th St. Hous. Dev. Fund Corp .. v Hendrick, 90 AD3d 541, 541 [1st Dept 2011]}.

A second CPLR 3211 motion is permitted when the complaint adds claims and theories of liability absent from the summons with notice.

Beckman v. Sahar · filed 2024-10-07

Plaintiffs claim that motion sequence no. 002 is improper because defendant Sahar already filed a motion under CPLR 3211 with respect to the summons with notice. However, as the complaint included new claims and theories of liability not contained in the summons with notice, a subsequent motion is permitted (e.g., Barbarito v Zahavi, 107 AD3d 416 [1st Dept 2013]).

CPLR 3211(a) permits a motion to dismiss a petition brought under CPLR 5206(e).

Matter of National Union Fire Ins. Co. of Pittsburgh, Pa · filed 2023-11-01(a)

A petition for a judgment pursuant to CPLR 5206(e) is subject to a motion to dismiss pursuant to CPLR 3211(a), contrary to National Union's contention.

CPLR 3211(e) bars a second motion to dismiss when the first motion was decided on the merits.

Wimberly v. Spring Bank, N.A. · filed 2025-03-24(e)

No such exception to the ... one-motion rule exists here, and plaintiff's motion (seq. no. 010) to dismiss defendant's counterclaim is denied.

CPLR 3211(e) permits a motion to dismiss for lack of subject matter jurisdiction at any time, even after an answer.

Johnson v. State of New York · filed 2025-07-11(e)

Among other things, that provision permits motions to dismiss on the ground of lack of subject matter jurisdiction to be made at any time, even after answering ( see CPLR 3211 [e]; Carpenter v Plattsburgh Wholesale Homes, Inc. , 83 AD3d 1175, 1177 n 1 [3d Dept 2011]; see also Financial Indus. Regulatory Auth., Inc. v Fiero , 10 NY3d 12, 17 [2008] [holding that lack of subject matter jurisdiction defense may be raised at any time in the litigation]).

A dismissal under CPLR 3211(a)(7) may be made without prejudice to a new action against a defendant on a potentially viable claim.

Marinello v. Iozzo · filed 1965-12-06(a)(7)

... granted the motions of defendants-respondents to dismiss the two causes of action for insufficiency (CPLR 3211, subd. [a], par. 7). Order modified by adding a fifth decretal paragraph to the effect that the granting of the motions is without prejudice to the commencement by plaintiff, if he be so advised, of a new action solely as against the defendant David Gilberg for recovery of the $100 fee received by said defendant.

Section 3211(e) permits a court to allow an amended pleading without requiring evidentiary support for the proposed amendment.

Morrison v. Filmways, Inc. · filed 1966-05-17(e)

The recent amendment to CFLR 3211 (subd. [e]), effective September 1, 1965, provides that submission of evidentiary support for a proposed amended pleading is not a mandatory requirement, but rather one that may be dispensed within the court’s discretion (4 Weinstein-Korn-Miller, New York Civil Practice, par. 3211.40).

Section 3211 permits dismissal of defenses and counterclaims without prejudice to seeking leave to replead when pending discovery may provide facts to support them.

Cyg-Knit Mills, Inc. v. Denton Sleeping Garment Mills, Inc. · filed 1966-10-11

It appears that the dismissal occurred while an examination of plaintiff, earlier sought, was pending. Sufficient is shown to indicate that appellant may be able to show by evidentiary demonstration that it has good grounds to support its affirmative defenses and claimed causes of action. It should be afforded the opportunity to do so (Cushman & Wakefield v. John David, Inc., 23 A D 2d 827; 25 A D 2d 133; CPLR 3211).

Section 3211(e) permits a court dismissing a cause of action for insufficiency to give the plaintiff leave to seek permission to amend the complaint.

Clayco Foods, Inc. v. Service Terminals, Inc. · filed 1968-01-30(e)

The first cause of action is dismissed with leave to plaintiff to apply to Special Term for permission to serve an amended complaint.

CPLR 3211(e) permits a petitioner whose petition has been dismissed to apply for leave to plead properly.

Barbarito v. Moses · filed 1969-03-04(e)

Petitioner is therefore given an opportunity to apply for leave to plead properly, if he can.

A court may condition leave to amend a deficient pleading on a factual showing that the proposed claim is viable.

Moss v. Kadish · filed 1970-02-19(e)

In furtherance of the purposes of CPLR 3211 (subd. [e]), and in conformity with the decisions of this court. ... the plaintiff, as a condition to obtaining leave to amend, must present a factual showing of a right of individual recovery on the basis of the proposed amended cause.

CPLR 3211(a)(7) permits a motion to dismiss an insufficient cross claim after the cross claimant has received leave to amend the answer.

Gebbie Foundation, Inc. v. Rogerson · filed 1970-03-26(a)(7)

Yet, the Nevins order granting Lefkowitz leave to serve an amended answer does not bar this motion to dismiss.

On the existing pleadings, a court required evidentiary support before granting leave to serve an amended complaint.

Glick v. Glick · filed 1970-06-19

Prerequisite to the service of such an amended complaint under the present status of the pleadings would be the submission to the court of evidence to justify the granting of leave to so plead '(CPLB 3211).

A complaint brought in an improper form may be dismissed without prejudice when the defect can be cured by repleading.

Glazer v. Alison Homes Corp. · filed 1970-04-07(a)(7)

The court is constrained to dismiss the complaint in its present form. However, it appears from the facts alleged that plaintiff may have a cause of action under the Lien Law against defendants Seaton and Wydler, if bottomed in a representative form of action.

A court may condition leave to amend after dismissal on an evidentiary showing that the proposed cause of action can be supported.

Harry Levine Corp. v. K. Gimbel Accessories, Inc. · filed 1973-02-26(e)

The privilege of serving an amended pleading rests not only upon formal corrections in the deficient pleading, but also upon an evidentiary showing that the cause of action can be supported.

A dismissal under CPLR 3211(a)(7) for failure to state a cause of action cannot be entered with prejudice; in a proper case, the court may deny leave to amend.

Richter v. Novo Corp. · filed 1973-11-20(a)(7)

As the basis of defendant’s motion to dismiss for failure to state a cause of action is CPLR 3211 (subd. [a], par. 7) the provision for ‘ ‘ prejudice ’ ’ is improper.. The most that can be done is, in a proper case, to deny leave to amend.

CPLR 3211(b) bars a party from reapplying to the trial court to plead a cause of action after an appellate court has denied leave to replead it.

Rainbow v. Rosenberg · filed 1976-11-12(b)

Giving effect to CPLR 3211 (subd [b]), plaintiff is denied the right to reapply to Special Term for an order amending the pleadings to assert the strict products liability cause of action.