N.Y. C.P.L.R. § 3211

Section 3211(c) requires notice to the parties before a court treats a preanswer motion to dismiss as a motion for summary judgment.

Zevrone Realty Corp., Matter of v. Gumaneh · filed 2016-04-26(c)

Civil Court erred by treating tenant's preanswer motion made pursuant to CPLR 3211(a)(1) and (7) as a motion for summary judgment without providing the parties with notice, as required by CPLR 3211(c) ( see Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]).

A court may treat a CPLR 3211 motion as one for summary judgment without additional notice when summary judgment was expressly sought in the alternative and the opposing party addressed that request.

SMITHERS, RANDY v. COUNTY OF ONEIDA · filed 2016-04-29(c)

We reject plaintiff’s contention that the court was required to give the parties notice that it was treating the motion as one for summary judgment. “[A] court may treat a motion to dismiss as a motion for summary judgment when the parties have otherwise received adequate notice by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [internal quotation marks omitted]; see generally Mihlovan v Grozavu, 72 NY2d 506, 508). Here, plaintiff was on notice that defendant was seeking summary judgment in the alternative and, indeed, opposed that part of the motion.

A court may treat a motion to dismiss as one for summary judgment without separate notice when the opposing party had notice that summary judgment was sought in the alternative.

Smithers v. County of Oneida · filed 2016-04-29

We reject plaintiffs contention that the court was required to give the parties notice that it was treating the motion as one for summary judgment. ... Here, plaintiff was on notice that defendant was seeking summary judgment in the alternative and, indeed, opposed that part of the motion.

Section 3211(c) requires notice before a motion to dismiss is converted to summary judgment unless the parties unequivocally chart a summary judgment course.

Hutchison v. Kings County Hospital Center · filed 2016-05-04(c)

The Supreme Court also erred in treating the motion to dismiss pursuant to, inter alia, CPLR 3211 (a) (7) as a motion for summary judgment (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180, 1183 [2010]), as no notice was provided to the parties and “the parties did not make it ‘unequivocally clear’ that they were ‘laying bare their proof’ and ‘deliberately charting a summary judgment course’ ” (Sokol v Leader, 74 AD3d at 1183, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]).

Section 3211(c) requires notice when a court converts a motion to dismiss into a motion for summary judgment based on evidence submitted with the motion.

Evans v. Deposit Central School District · filed 2016-05-05(c)

To the extent that Supreme Court relied on evidence proffered by defendants on their motion as a basis for dismissal without first converting the motion into a motion for summary judgment and notifying plaintiffs of that conversion, it did so improperly (see CPLR 3211 [c]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; T. Lemme Mech., Inc. v Schalmont Cent. School Dist., 52 AD3d 1006, 1008 [2008]).

CPLR 3211(c) requires notice before a dismissal motion is treated as one for summary judgment when the questions raised are factual rather than solely legal.

Kurylov v. Icahn School of Medicine at Mount Sinai · filed 2016-05-05(c)

This case does not pose any exception to the notice requirement under CPLR 3211 (c), because the questions raised about whether plaintiff has any evidence of discrimination, are not solely ones of law or statutory interpretation.

Section 3211(c) requires notice to the parties before a court converts a pre-answer motion to dismiss into a motion for summary judgment.

Maki v. Bassett Healthcare · filed 2016-07-21(c)

Initially, we note that, because defendants' motion was made pre-answer, Supreme Court should not have decided it pursuant to CPLR 3212 without first notifying the parties of its conversion (see CPLR 3211 [c]; Lockheed Martin Corp. v Aatlas Commerce Inc., 283 AD2d 801, 802 [2001]; see also Yule v New York Chiropractic Coll., 43 AD3d 540, 541 [2007]).

Section 3211(c) requires notice before a court converts a preanswer motion to dismiss into a motion for summary judgment.

DeVries v. Jim Duffy, LLC · filed 2016-09-14(c)

Nor did the court give notice of an intent to convert defendants' preanswer CPLR 3211(a)(7) motion to dismiss the fourth cause of action to a motion for summary judgment addressed to other causes of action ( see CPLR 3211[c]; Primedia Inc. v SBI USA LLC , 43 AD3d 685, 686 [2007]) and it is not clear from the record that defendants deliberately charted a summary judgment course ( see Chiu v 1-9 Bond St. Realty, Inc ., 79 AD3d 416 [2010]; Four Seasons Hotels v Vinnik , 127 AD2d 310, 320-321 [1987]).

Section 3211(c) does not require notice before treating a dismissal motion as one for summary judgment when the moving papers expressly request that relief and the opposition shows awareness of it.

Mew Equity, LLC v. Sutton Land Services, LLC · filed 2016-11-16(c)

Contrary to the Mew plaintiffs’ contentions, the court would not have been required to give notice pursuant to CPLR 3211 (c) that the motions would be converted into ones for summary judgment.

CPLR 3211(c) requires adequate notice before a court converts a motion to dismiss into one for summary judgment unless the parties have charted a course for summary judgment.

Island Intellectual Property LLC v. Reich & Tang Deposit Solutions, LLC · filed 2017-11-28(c)

The motion court should not have entertained plaintiffs’ cross motion for summary judgment, as the parties did not chart a course for summary judgment (see Primedia Inc. v SBI USA LLC, 43 AD3d 685, 686 [1st Dept 2007]). Defendants objected to the court entertaining the motion as one for summary judgment and the court did not provide adequate notice of its intention to convert the motions pursuant to CPLR 3211 (c) (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

CPLR 3211(a)(5) permits dismissal when a cause of action is barred by collateral estoppel, and CPLR 3211(c) permits a court, after adequate notice, to treat a motion under subdivision (a) or (b) as one for summary judgment.

Karimian v. Time Equities, Inc. · filed 2018-08-01(a)(5), (c)

A party may move for judgment dismissing one or more causes of action asserted against him or her on the ground that the cause of action may not be maintained because of collateral estoppel ( see CPLR 3211[a][5]). ... CPLR 3211(c) provides, "[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment."

Section 3211 permits a court to convert a motion to dismiss into a motion for summary judgment when the issue is purely legal and based on undisputed facts.

Matter of Corrales v. Zoning Bd. of Appeals of the Vil. of Dobbs Ferry · filed 2018-08-08(a)

Since this is a purely legal conclusion based on arguments raised in the motions to dismiss, and based on undisputed facts, contrary to the appellants' contentions, the conversion of their motions into motions for summary judgment was proper, and we agree with the court's determination granting summary judgment to the petitioners on this issue prior to the filing of an answer ( see O'Hara v Del Bello , 47 NY2d 363, 366-368; Matter of Arash Real Estate & Mgt. Co. v New York City Dept. of Consumer Affairs, 148 AD3d 1137, 1138; cf. Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop Educ. Servs. of Nassau County , 63 NY2d 100, 104).

CPLR 3211(c) does not require notice before conversion to summary judgment when the motion was made under both CPLR 3211 and 3212.

Matter of Vaccari v. Vaccari · filed 2019-05-23(c)

The court was not required to notify petitioners pursuant to CPLR 3211(c) that it was converting respondents' cross motion to one for summary judgment, because respondents moved pursuant to both CPLR 3211 and 3212.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when both sides clearly lay bare their proof and proceed on a summary judgment course.

Hernandez v. 2075-2081 Wallace Ave. Owners Corp. · filed 2019-10-10(c)

The motion court providently exercised its discretion in treating defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) as a motion for summary judgment (CPLR 3211[c]), since both sides made it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course ( see Four Seasons Hotels v Vinnik , 127 AD2d 310, 320-321 [1st Dept 1987]).

Section 3211(c) requires adequate notice before a court converts a motion to dismiss into a summary judgment motion, unless the parties have expressly sought summary judgment or deliberately pursued that course.

Kelly D. v. Niagara Frontier Tr. Auth. · filed 2019-11-08(c)

Here, the court first raised the possibility of converting the motion in its bench decision. It therefore did not provide "adequate notice to the parties" of the conversion (CPLR 3211 [c]), and there is no indication that the parties were "expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course' " ( Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; see Matter of Town of Geneva v City of Geneva , 63 AD3d 1544, 1544 [4th Dept 2009]).

Section 3211 permits a court to decline to convert a dismissal motion to summary judgment when the contract is unambiguous and discovery is unnecessary.

Condor Capital Corp. v. CALS Invs., LLC · filed 2020-01-28(c)

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on June 8, 2018, which, inter alia, granted the motion of defendant CALS Investors, LLC (defendant) to dismiss, pursuant to CPLR 3211(a)(1) and (7), so much of the first cause of action as alleged that defendant had breached the parties' contract by failing to properly calculate the MOIC Target, unanimously affirmed, with costs. ... The IAS court providently exercised its discretion by not converting defendant's motion into a summary judgment motion ( see Lerner v Prince, 119 AD3d 122, 131 [1st Dept 2014]).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment after notifying the parties and giving them an opportunity to make supplemental submissions.

Gottlieb v. Colonel · filed 2020-02-19(c)

We agree with the Supreme Court's determination converting the defendants' motion to dismiss into a motion for summary judgment after providing the parties with the requisite notice of its intent to treat the motion as one for summary judgment and the opportunity to make supplemental submissions ( see CPLR 3211[c]; Segall v Sanders , 129 AD3d 819, 820; Cenzon-Decarlo v Mount Sinai Hosp. , 101 AD3d 924, 926; Nassau Diagnostic Imaging & Radiation Oncology Assoc. v Winthrop-Univ. Hosp. , 197 AD2d 563, 563).

A CPLR 3211 motion may be treated as a summary judgment motion when the parties submit their proof and deliberately chart a summary judgment course.

Ain v. Allstate Ins. Co. · filed 2020-03-25(c)

We agree with the Supreme Court's determination to treat Allstate's motion solely as one for summary judgment, as the parties demonstrated with their submissions that they were "laying bare their proof and deliberately charting a summary judgment course" ( Hendrickson v Philbor Motors, Inc. , 102 AD3d 251, 258-259; see Bank of N.Y. Mellon v Green , 132 AD3d 706, 706-707; Okeke v Momah , 132 AD3d 648, 648).

Section 3211(c) requires adequate notice before a court converts a motion to dismiss into a motion for summary judgment, unless the parties have deliberately charted a summary judgment course.

C & D Design, Build, Dev., LLC v. Village of Alexander, N.Y. · filed 2020-08-20(c)

Initially, we agree with plaintiff that the court erred in converting defendants' motion to dismiss to one for summary judgment. The court did not provide "adequate notice to the parties" that it was doing so (CPLR 3211 [c]), nor did defendants and plaintiff otherwise receive adequate notice by "submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course" ( Matter of Town of Geneva v City of Geneva , 63 AD3d 1544, 1544 [4th Dept 2009] [internal quotation marks omitted]).

Section 3211(c) requires adequate notice before a court treats a pre-answer motion to dismiss as one for summary judgment.

Matter of Gorelick v. Suffolk County Comptroller's Off. · filed 2020-09-23(c)

Having converted the petition to a complaint, the court could only reach the merits by giving the parties adequate notice that it was going to treat the defendant's pre-answer motion to dismiss as one for summary judgment ( see CPLR [*2]3211[c]; see Mihlovan v Grozavu , 72 NY2d 506, 508; John & Mary Markle Found. v Manufacturers Hanover Trust Co. , 173 AD2d 784, 785-786).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without notice when the motion presents a purely legal question and the relevant facts are undisputed.

BR Clinton Chiropractic, P.C. v. GEICO Ins. Co. · filed 2020-10-30(c)

While it is uncontested that the Civil Court did not notify the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable here, as defendant's motion exclusively involved "a purely legal question rather than any issues of fact" ( Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co. , 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

CPLR 3211(c) permits a motion to dismiss to be treated as a summary judgment motion when the parties request that treatment and submit their proof on that basis.

Serrano v. County of Suffolk · filed 2020-11-12(c)

We agree with the Supreme Court's determination to treat the defendants' motion solely as one for summary judgment since, in their motion papers, the defendants sought relief pursuant to both CPLR 3211(a) and 3212, and specifically requested CPLR 3211(c) treatment in their memorandum of law, the plaintiff's responsive papers clearly stated that they were being submitted in opposition to the defendants' motion for summary judgment, and the parties demonstrated with their submissions that they were "laying bare their proof and deliberately charting a summary judgment course" ( Hendrickson v Philbor Motors, Inc. , 102 AD3d 251, 258-259; see Ain v Allstate Ins. Co. , 181 AD3d 875, 876; Bank of N.Y. Mellon v Green , 132 AD3d 706, 706-707).

CPLR 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment.

Certain Underwriters at Lloyd's London Subscribing to Policy No., PGIARK01449-05 v. Advance Tr. Co., Inc. · filed 2020-11-17(c)

The grant of summary judgment in favor of plaintiff insurer and treatment of defendant's motion to dismiss as a motion for summary judgment pursuant to CPLR 3211(c) was correct as a matter of law ( Wiesen v New York Univ. , 304 AD2d 459, 460 [1st Dept 2003]).

Section 3211(c) permits a court to treat a pre-answer motion as one for summary judgment when the parties have prior notice or their submissions show an intent to pursue summary judgment by laying bare their proof.

C.F. v. New York City Dept. of Health & Mental Hygiene · filed 2020-12-23(c)

However, a court may treat a pre-answer motion as one for summary judgment if it "give[s] prior notice to the parties or, through their submissions, the parties themselves . . . demonstrate an intent to deliberately chart a summary judgment course" by laying bare their proof ( Elhannon, LLC v Brenda J. DeLuca Trust , 108 AD3d 911, 911-912 [brackets and internal quotation marks omitted]; see CPLR 3211[c]; Matter of Dashnaw v Town of Peru , 111 AD3d 1222, 1224). We agree with the Supreme Court that, under the circumstances presented, it was appropriate to determine the ultimate merits of this case.

A court may treat a CPLR 3211 motion as one for summary judgment without advance notice when the motion presents only a legal question.

Allay Med. Servs., P.C. v. Nationwide Ins. · filed 2021-02-05(c)

Consequently, it was proper for the Civil Court to treat defendant's motion to dismiss as one for summary judgment "without first giving notice of its intention to do so" ( Four Seasons Hotels , 127 AD2d at 320).

Section 3211(c) permits conversion of a motion to dismiss into a motion for summary judgment when the plaintiff requests that treatment and the motion presents only questions of law.

Few Spirits v. UB Distribs., LLC · filed 2021-03-04(c)

First, the motion court properly converted the motion to dismiss into a motion for summary judgment because plaintiff requested such treatment and the motion presented only issues of law and not issues of fact ( Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1st Dept 1987]; see also Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]).

A court cannot grant a petition on its merits before respondents answer unless it complies with CPLR 3211(c).

Matter of Le Golgotha Lodge, Inc. v. Tax Commn. of the City of N.Y. · filed 2021-07-14(c)

However, the Supreme Court erred when it went on to grant the petition on its merits without first either complying with CPLR 3211(c) or requiring the City and the Trust to file answers ( see Matter of Drug Policy Alliance v New York City Tax Commn. , 131 AD3d at 816; Matter of Mid-Hudson Workshop for the Disabled v City of Poughkeepsie , 245 AD2d 291).

A court should not convert a motion to dismiss to summary judgment under § 3211(c) when the parties have not agreed to that course and factual issues remain disputed.

Davis v. Augoustopoulos · filed 2021-10-21(c)

However, having determined that the purely legal statute of limitations argument was inapplicable, the court should not have converted defendant's motion to dismiss into a motion for summary judgment under CPLR 3211(c), since plaintiffs did not agree to "charting a summary judgment course," and the case did not involve a "purely legal question without any disputed issues of fact" ( Brathwaite v Frankel , 98 AD3d 444, 444-445 [1st Dept 2012]).

CPLR 3211(c) makes conversion of a motion to dismiss into a summary judgment motion premature when the opposing party has had no reasonable opportunity for relevant discovery.

Menche v. CDx Diagnostics, Inc. · filed 2021-11-03(c)

Initially, we note that the Supreme Court erred in converting the motion to dismiss to one for summary judgment ( see CPLR 3211[c]; Hendrickson v Philbor Motors, Inc. , 102 AD3d 251). ... Therefore, converting the motion to dismiss into a motion for summary judgment was premature.

A court may search the record after a CPLR 3211 motion has been converted to one for summary judgment.

Sitt v. Sitt · filed 2021-12-02

Nor did the court impermissibly search the record on a CPLR 3211 motion. The motion had been converted to one for summary judgment.

CPLR 3211(c) permits a court, on notice to the parties, to convert a motion to dismiss into a summary judgment motion before issue is joined; it does not authorize a party to move directly for summary judgment at that stage.

SHG Resources, LLC v. SYTR Real Estate Holdings LLC · filed 2022-01-27(c)

While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where SHG moved directly for summary judgment; thus, a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied ( see Valentine Tr. v Kernizan , 191 AD2d 159, 161 [1st Dept 1993]).

A court may convert a CPLR 3211(a) motion to a summary judgment motion after giving the parties notice, but conversion is discretionary.

Kelsey v. Lenore R. · filed 2022-12-22(c)

A court "may treat" a motion under CPLR 3211 (a) as a summary judgment motion after giving notice to the parties (CPLR 3211 [c]). [FN1] This is a discretionary determination, and the court here did not abuse its discretion in declining plaintiff's request ( see Siddiqui v Nationwide Mut. Ins. Co. , 255 AD2d 30, 34 [3d Dept 1999]).

CPLR 3211(c) requires adequate notice before a court converts a motion to dismiss into a motion for summary judgment, unless a recognized exception applies.

Champion Mtge. Co. v. Antoine · filed 2023-03-08(c)

Here, the Supreme Court erred in, in effect, converting that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her to one for summary judgment. The court failed to provide the requisite notice to the parties, and none of the recognized exceptions to the notice requirement applied ( see Galardi v Town of Hempstead , 164 AD3d at 761; Soroush v Citimortgage, Inc. , 161 AD3d 1124, 1125).

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment when the parties have made extensive evidentiary submissions.

RCM/CMG Portfolio Holding, LLC v. Giordano · filed 2023-03-14(c)

In view of the parties' extensive evidentiary submissions, we treat this motion as solely for summary judgment ( see CPLR 3211[c]; Meredith v Siben & Siben, LLP , 130 AD3d 791, 791 [2d Dept 2015], lv denied 26 NY3d 910 [2015]; Elsky v Hearst Corp. , 232 AD2d 310, 310 [1st Dept 1996]).

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment only after adequate notice to the parties, unless an exception applies.

Pacheco v. Jabalera · filed 2023-03-16(c)

CPLR 3211(c) empowers the court to convert a 3211 motion to one for summary judgment, but only after adequate notice to the parties. The motion court provided no notice to the parties.

CPLR 3211(c) does not permit a summary judgment course unless both sides deliberately lay bare their proof and make clear that they are pursuing it.

Adago v. Sy · filed 2023-05-02(c)

"[T]his is not a case where both sides deliberately lay bare their proof and make clear that they were charting a summary judgment course" pursuant to CPLR 3211(c) ( American Infertility of N.Y., P.C. v Kushnir , 187 AD3d 629, 630 [1st Dept 2020][internal quotation marks omitted]).

Section 3211(c) does not permit conversion of a motion to dismiss into a motion for summary judgment when summary judgment would be premature.

Russo v. Crisona · filed 2023-08-30(c)

However, such conversion is inappropriate where a motion for summary judgment would be premature ( see Menche v CDx Diagnostics, Inc. , 199 AD3d 678; Francisco v Kiara Foods, Inc. , 197 AD3d 563, 565; see also CPLR 3212[f]). ... Therefore, the defendants' motion pursuant to CPLR 3211(a) should not have been converted into a motion for summary judgment ( see Menche v CDx Diagnostics, Inc. , 199 AD3d at 680; Francisco v Kiara Foods, Inc. , 197 AD3d at 565).

Section 3211(c) requires adequate prior notice before an untimely post-answer motion to dismiss is treated as a motion for summary judgment, unless an exception applies.

Smith, Gambrell & Russell, LLP v. 3 W. 16th St., LLC · filed 2023-10-03(c)

Defendant's post-answer motion to dismiss was not timely (CPLR 3211 [e]; e.g. Han v New York City Tr. Auth. , 203 AD3d 511, 512 [1st Dept 2022]). Thus, the motion could not be properly considered unless the parties were given adequate prior notice that the motion would be treated as a motion for summary judgment under CPLR 3212 or unless an exception to the notice requirement applied ( see CPLR 3211[c]; Rich v Lefkovits , 56 NY2d 276, 281-282 [1982]; see also Wiesen v New York Univ. , 304 AD2d 459, 460 [1st Dept 2003]).

Section 3211(c) does not require conversion of a motion to dismiss into a summary judgment motion on notice when the petition and supporting materials show that the petitioner has no cause of action.

Matter of 301 E. 66th St. Condominium Corp. v. City of New York · filed 2024-02-06(c)

There was no need for Supreme Court to convert the motions to dismiss into summary judgment motions on notice, as the petition, exhibits, and affidavits in support thereof demonstrate that petitioner does not have a cause of action for spot zoning ( see CPLR 3211[c]; Leon v Martinez , 84 NY2d 83, 88 [1994]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without advance notice when the motion presents a purely legal question.

Small v. Clarke · filed 2024-02-09(c)

While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant's motion exclusively involved "a purely legal question rather than any issues of fact" ( Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; see Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]; Allay Med. Servs., P.C. v Nationwide Ins. , 70 Misc 3d 138[A], 2021 NY Slip Op 50086[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Active Chiropractic, P.C. v Allstate Ins. , 58 Misc 3d 156[A], 2018 NY Slip Op 50201[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Renelique v State-Wide Ins. Co. , 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [*3][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court to, in effect, treat defendant's motion to dismiss as one for summary judgment "without first giving notice of its intention to do so" ( Four Seasons Hotels , 127 AD2d at 320).

CPLR 3211(c) permits a court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, but does not apply to a motion brought directly for summary judgment.

Neighborhood Renewal Hous. Dev. Fund Corp. v. Madrid · filed 2024-02-21(c)

While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where petitioner moved directly for summary judgment.

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment, but the court may deny conversion as premature when discovery is incomplete.

Colalillo v. Malatesta · filed 2024-03-21(c)

Plaintiffs' motion to convert their motion to dismiss into a motion for summary judgment under CPLR § 3211(c) is denied as discovery is not complete.

Section 3211(c) allows a court to treat a motion to dismiss as a motion for summary judgment.

Taubes v. Yorkshire House Assoc. LLC · filed 2024-03-14(c)

The Court will treat defendant's cross-motion as a motion for summary judgment pursuant to CPLR 3211 (c).

Section 3211(c) permits a dismissal motion supported by extrinsic evidence to be treated as a motion for summary judgment.

Michael v. Ametelco, Inc. · filed 1991-02-14(c)

As plaintiffs correctly pointed out and anticipated in their answering papers, the defendants’ introduction of extrinsic evidence requires the motion to be considered as one for summary judgment (CPLR 3212) rather than for dismissal (CPLR 3211 [c]).

Section 3211(c) requires adequate notice to the parties before a court converts a motion to dismiss into a motion for summary judgment.

Barker v. Gervera · filed 2025-03-14(c)

We conclude that the court erred in converting the Gervera defendants' motion to a CPLR 3212 motion. A court may treat a CPLR 3211 motion made under subdivision (a) or (b) as a motion for summary judgment " after adequate notice to the parties " (CPLR 3211 [c] [emphasis added]).

Section 3211(c) permits a motion to dismiss to be converted to a motion for summary judgment when extrinsic evidence is introduced.

Matter of Susco · filed 2025-05-16(c)

As an initial matter, the introduction of extrinsic evidence requires the motion to be considered as one for summary judgment [CPLR §3212] rather than for dismissal [CPLR §3211(c)]. Accordingly, this application is converted to a motion for summary judgment and the court is guided by the attendant standard of review.

CPLR 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment and give the parties an opportunity to submit additional papers.

Matter of V.T. v. A.S. · filed 2025-05-29(c)

By order dated March 17, 2025, this Court, pursuant to CPLR 3211(c), converted the parents' motion to dismiss under CPLR 3211 into a motion for summary judgment, and gave the parties an opportunity to submit additional papers pursuant CPLR 3211(c) and CPLR 409.

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment after adequate notice to the parties; conversion is inappropriate when the parties have not deliberately pursued summary judgment.

Allen v. City of New York · filed 2025-07-03(c)

However, CPLR § 3211 (c) authorizes the court to treat a motion to dismiss as a motion for summary judgment "after adequate notice to the parties." ... Conversion is not appropriate here because the notice requirement has not been satisfied and because the parties' submissions do not evidence that they "deliberately charted a summary judgment course."

Section 3211(c) requires adequate notice to the parties before a court treats a motion to dismiss as one for summary judgment.

Klymn v. Supreme Ct., Monroe County · filed 2025-07-25(c)

Initially, absent from the record is any indication that Supreme Court, Erie County, provided adequate notice to the parties that it was treating defendants' motion as one for summary judgment and we therefore review plaintiff's contentions in the context of a motion to dismiss pursuant to CPLR 3211 (a) (7) ( see CPLR 3211 [c]; Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; Ward v Guardian Indus. Corp. , 17 AD3d 1100, 1101 [4th Dept 2005]; Costanza Constr. Corp. v City of Rochester , 135 AD2d 1111, 1111-1112 [4th Dept 1987]).

Section 3211(c) requires adequate notice before a court converts a motion to dismiss into one for summary judgment unless a recognized exception applies.

Kitt v. Incorporated Vil. of Babylon · filed 2025-10-08(c)

The plaintiff correctly contends that the Supreme Court improperly, in effect, converted the Village defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them into one for summary judgment dismissing the complaint insofar as asserted against them without adequately notifying the parties pursuant to CPLR 3211(c) ( see Fedele v Qualified Personal Residence Trust of Doris Rosen Margett , 137 AD3d 965, 966-967; Deutsche Bank Natl. Trust Co. v Kuldip , 108 AD3d 686, 687). None of the recognized exceptions to the notice requirement applied here ( see Deutsche Bank Natl. Trust Co. v Kuldip , 108 AD3d at 687).

A CPLR 3211 motion made after issue is joined may be treated as a summary judgment motion when the parties deliberately chart a summary judgment course.

Bartlett Plaza, LLC v. Jose · filed 2025-10-15

Contrary to the plaintiff's contention, the Supreme Court did not improperly convert that branch of the sellers' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the first cause of action insofar as asserted against them into one for summary judgment dismissing that cause of action. Rather, since the motion was made after issue was joined, and since the parties deliberately charted a summary judgment course, the court properly treated that branch of the sellers' motion as one for summary judgment dismissing that cause of action insofar as asserted against them ( see Bank of N.Y. Mellon v Green , 132 AD3d 706, 706; Clervil v Bellevue , 77 AD3d 697, 698).

The liberal pleading standard for a pre-answer motion under CPLR 3211(a)(7) need not be applied when the parties chart a summary judgment course.

Matter of Ferretti v. New York State Div. of Criminal Justice Servs. · filed 2025-10-30(a)(7)

Insofar as the parties charted a summary judgment course, we decline to apply the liberal pleading standard typically used to analyze pre-answer motions to dismiss under CPLR 3211 (a) (7) ( see Matter of Kitto v City of Albany, N.Y. Dept. of Police , 213 AD3d at 1169).

Section 3211(c) requires notice before a court converts a motion to dismiss into a motion for summary judgment when neither party requested conversion.

Molina v. Mount Sinai Morningside Hosp. · filed 2025-12-09(c)

Supreme Court erred by treating defendants' motion as one for summary judgment without employing the correct procedure as required under CPLR 3211(c). After determining that the Mt. Sinai defendants' CPLR 3211(a)(5) motion to dismiss on statute of limitations grounds was served after their answer and thus untimely, the court converted the motion to one for summary judgment. However, the court never provided notice of its intention to convert, and it is undisputed that neither side requested that the matter be considered as one for summary judgment ( see Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1st Dept 1987]).

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment, but conversion is inappropriate where factual issues remain, discovery has not occurred, and the parties have not chosen to proceed on that basis.

Ramirez v. Grand Canyon Bistro Corp. · filed 2026-03-17(c)

Where, as here, no discovery has been exchanged and the parties have not indicated that the case involves a purely legal question rather than any issues of fact, and where it appears that neither party has submitted facts and arguments clearly indicating that they were "deliberately charting a summary judgment course," the initial branch of Defendants' motion seeking for the court to consider their cross-motion as one for summary judgment is denied (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988] [internal quotation marks and footnote omitted]).

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment without notice when the parties expressly seek summary judgment or deliberately present their proof on that basis.

McInnis v. A.O. Smith Water Prods. · filed 2026-04-24(c)

Although the court did not "give the parties notice of its intent" to treat the motion as one for summary judgment (Carcone v D'Angelo Ins. Agency, 302 AD2d 963, 963 [4th Dept 2003]; see CPLR 3211 [c]), the failure to provide notice is not fatal where, as here, "the parties expressly [sought] summary judgment or [submitted] facts and arguments clearly indicating that they were deliberately charting a summary judgment course" (Carcone, 302 AD2d at 963 [internal quotation marks omitted]; see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

CPLR 3211(c) requires adequate notice to the parties before a court converts a motion to dismiss into a motion for summary judgment.

Merola v. Narrows Med. Bldg. Assoc., LLC · filed 2026-06-03(c)

Here, the Supreme Court failed to provide adequate notice pursuant to CPLR 3211(c) and erroneously, in effect, converted the defendant's motion pursuant to CPLR 3211(a) into one for summary judgment pursuant to CPLR 3212 ( see Mihlovan v Grozavu , 72 NY2d 506, 508; TV Tech Mgrs., Inc. v Cohen , 227 AD3d 838, 839; Velez v Captain Luna's Mar. , 74 AD3d 1191).

CPLR 3211(c) permits a court to convert a motion to dismiss to a motion for summary judgment when the parties receive adequate notice.

Happy Lake House, LLC v. Cross · filed 2026-06-05(c)

The court provided "adequate notice to the parties" of its determination to convert the motion pursuant to CPLR 3211 (c) ( see Barker v Gervera , 236 AD3d 1318, 1320 [4th Dept 2025]; Carcone v D'Angelo Ins. Agency , 302 AD2d 963, 963 [4th Dept 2003]), and plaintiff failed to establish that summary judgment was premature inasmuch as it did not demonstrate that additional discovery would lead to relevant evidence or give rise to an identifiable issue of fact ( see Guarino v ProHEALTH Care Assoc. , LLP , 219 AD3d 467, 469 [2d Dept 2023]; see generally Johnson-Neuland v New York Mun. Ins. Reciprocal , 186 AD3d 1042, 1042-1043 [4th Dept 2020]).

Section 3211(c) requires adequate notice and an opportunity to make a record before a court converts a motion to dismiss into one for summary judgment.

Deming v. County of Chautauqua · filed 2026-06-05(c)

Although a court may convert a motion to dismiss to one for summary judgment, "it must first provide adequate notice to the parties, and thus give [*2] them an opportunity to make an appropriate record" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 635 [1976]; see CPLR 3211 [c]; Barker v Gervera , 236 AD3d 1318, 1320 [4th Dept 2025]), which was not done here.

Section 3211(e) permits a court to treat a motion to dismiss as one for summary judgment.

Broad Properties, Inc. v. O'Hara · filed 1974-07-22(e)

We are treating the first above-mentioned motion as one for summary judgment (CPLR 3211, subd. [e]).

Under CPLR 3211(c), summary judgment is improper when questions of fact are present.

American Industrial Contracting Co. v. Modu-Wall-A. M. M. C. · filed 1978-07-10(c)

—In an action, inter alia, to recover damages for breach of contract, plaintiff appeals from an order of the Supreme Court, Kings County, dated May 26, 1977, which, upon the motion of defendant Blitman Construction Company, (1) dismissed the first, third, fifth and sixth causes of action of the amended complaint as against said defendant pursuant to CPLR 3211 (subd [a], par 7) and (2) granted said defendant summary judgment on the second and fourth causes of action pursuant to CPLR 3211 (subd [c]). ... Summary judgment as to the second and fourth causes of action was improperly granted since questions of fact are present.

Section 3211(c) permits a court to convert a motion to dismiss into one for summary judgment and order a hearing.

Cammaroto v. Anson · filed 1979-05-28(c)

Order reversed, with $50 costs and disbursements, motion converted to one for summary judgment and case remitted to Special Term for a hearing pursuant to CPLR 3211 (subd [c]) in accordance herewith.

Section 3211(c) permits a court to treat a motion to dismiss as one for summary judgment.

Board of Managers v. Church of Holy Comforter · filed 1993-05-28(c)

The court, pursuant to CPLR 3211 (c), treated the defendant’s motion as one for summary judgment.

Section 3211(c) permits a court to treat a motion to dismiss as a motion for summary judgment after adequate notice to the parties.

Webster v. Monroe County Water Authority · filed 2000-02-16(c)

Finally, we reject the contention of the Village that the court erred in converting the Town’s motion to dismiss the complaint with prejudice to a motion for summary judgment. CPLR 3211 (c) permits a court, “after adequate notice to the parties,” to treat a motion to dismiss pursuant to CPLR 3211 (a) or (b) as a motion for summary judgment.

Section 3211(c) permits conversion of a motion to dismiss to one for summary judgment; without conversion, the court cannot resolve disputed facts to dismiss the complaint.

Murray v. Reif · filed 2007-01-18(c)

While we recognize that the record reflects that defendant has a very different version of the facts from that of plaintiff, Supreme Court did not convert this motion to one for summary judgment (see CPLR 3211 [c]; Rovello v Oro fino Realty Co., 40 NY2d 633 [1976]), summarily concluding that the officer was acting within the scope of his employment and the discharge of his duties was unwarranted on this record.

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment after giving the parties notice and an opportunity to submit additional papers.

Mental Hygiene Legal Service v. Sullivan · filed 2016-06-15(c)

Further, given that it was “appropriate for the expeditious disposition of the controversy,” the court converted the motion to dismiss to one for summary judgment pursuant to CPLR 3211 (c). Each party was provided notice of the court’s conversion and was permitted to submit additional papers in support of its position.

Section 3211(c) permits a court to convert a motion to dismiss into a motion for summary judgment after notifying the parties and allowing supplemental submissions.

Smith, Gambrell & Russell, LLP v. 3 W. 16th St., LLC · filed 2024-09-03(c)

For the reasons set forth below, Plaintiffs motion for summary judgment, and Defendant's motion to dismiss the complaint in its entirety, converted to a motion for summary judgment pursuant to CPLR 3211 (c), are denied.

A court may consider a CPLR 3211(a) dismissal argument despite citation to the wrong subsection when the error does not prejudice the opposing party.

Pursuit Investment Management, LLC v. Alpha Beta Capital Partners, L.P. · filed 2015-12-15(a)

The court should have considered defendants’ claim splitting argument, despite their having failed to assert the correct subsection of CPLR 3211 (a), since plaintiffs’ substantial rights were not prejudiced, plaintiffs were aware of the relief being sought, and Alpha Beta and Reed Smith’s mistake did not result in any action being taken against plaintiffs that would not have occurred had the proper provision been cited (Moon v Tupler, 110 AD3d 486 [1st Dept 2013]; CPLR 2001).

A request for dismissal under CPLR 3211 is procedurally before the court when the notice of motion and supporting affidavit clearly seek dismissal.

Kearney v. Kearney · filed 2013-11-07

In this case, the notice of motion, read in conjunction with the first sentence in the borrower’s attorney’s affidavit, clearly indicates that the borrower is seeking dismissal of the pending foreclosure action. When read in this fashion, the issue of dismissal of the complaint, whether pursuant to CPLR 3211 or 3212, is procedurally before the court.

A common interest privilege generally cannot support a preanswer motion to dismiss under section 3211(a) because it is an affirmative defense.

Demas v. Levitsky · filed 2002-02-14(a)

Because the “common interest” privilege constitutes an affirmative defense (see, Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56, 59; Norwood v City of New York, 203 AD2d 147, 148, lv dismissed 84 NY2d 849), however, it does not lend itself to a preanswer motion to dismiss pursuant to CPLR 3211 (a) (but see, Doherty v New York Tel. Co., 202 AD2d 627).

An amended notice of a Section 3211 motion is unnecessary when the plaintiff knew the nature of the motion and had an opportunity to contest it.

Lanzisera v. Miller · filed 2001-12-21

We reject the contention of plaintiff that defendants’ failure to serve him with an amended notice of motion seeking dismissal of the amended complaint pursuant to CPLR 3211 deprived him of due process.

CPLR 3211 permits dismissal for failure to state a cause of action before a responsive pleading is served.

Macalena v. Cochrane · filed 1994-07-11(e)

Accordingly, the court was permitted to dismiss the complaint prior to the service of a responsive pleading (see, CPLR 3211 [e]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:7, C3211:28).

Section 3211(a)(7) does not permit a pre-answer determination that liability is limited when sufficient supporting evidence has not been presented.

Gannone v. Wittman · filed 1994-02-24(a)(7)

Furthermore, we agree that defendant’s claim that his liability is conclusively limited to debts incurred after July 20, 1990 cannot be decided on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) because sufficient evidence to support this conclusion has not been presented at this stage in the litigation.

A court may condition substitution of a plaintiff on the new plaintiff’s consent to an additional CPLR 3211 motion within 20 days after service of the order and notice of consent.

Lazar v. Merchants' National Properties, Inc. · filed 1964-12-17

Although defendants do not contend that they overlooked other defenses in reliance on the defense of lack of capacity nor show the existence of any defense assertable against McCrory but not Lazar, the order ¡should be modified to condition such substitution on McGrory’s consent to any additional motion under CPLR 3211 as defendants may choose to make within 20 days after service on them of the order herein and notice of such consent.

CPLR 3211(a) encompasses a motion seeking dismissal for improper service or failure to state a cause of action, together with a request for a more definite statement.

Huntington Utilities Fuel Corp. v. McLoughlin · filed 1965-01-13(a)

The motion in its entirety falls of course within the scope of CPLR 3211 (subd. [a]).

A court may treat a motion made under other provisions as a CPLR 3211(a)(7) motion when the parties and trial court have addressed whether the complaint states a cause of action.

La Lumia v. Schwartz · filed 1965-03-08(a)(7)

While the defendants’ motion was not also made under CPLR 3211 (subd. [a], par. 7) to dismiss the complaint for failure to state a cause of action, as it should have been, nevertheless the parties and the Special Term have treated the motion as though it were so made. We have done likewise. Since the question of the sufficiency of the complaint was involved and was presented and adjudicated, and since all the parties have proceeded on this appeal to argue the sufficiency of the complaint, the court has ignored the technical defect in procedure and has determined the substantive issues raised.

Section 3211(a)(2) allows a court to treat miscaptioned motion papers challenging subject matter jurisdiction as an application to dismiss without first requiring an answer.

In re the Estate of Lifschutz · filed 1967-07-31(a)(2)

Viewed in this light, and to avoid ,the circuity that would result in requiring the respondents to first file an answer, the court will treat the moving papers as an application pursuant to CPLB 3211 (subd. [a], par. 2).

Section 3211(c) permits an immediate trial of an issue raised on a motion to dismiss, but failure to order one or request one does not mean the issue was decided on the merits.

Frantz v. State · filed 1968-05-20(c)

Moreover, while the court had the discretion to order an immediate trial of the issue raised on the motion (CPLR 3211, subd. [c]), its failure to do so or the moving party’s failure to request the same does not, of course, mean that that issue must have been decided on the merits.

Section 3211(a) permits a court to dismiss a complaint even when the defendant has not requested that relief.

Stanley v. Caltex Petroleum Corp. · filed 1970-05-08(a)

However, I have concluded that from the undisputed facts in the case, defendant is entitled to summary judgment dismissing the complaint without the necessity of determining the effect, if any, of the special payments on Caltex’ alleged liability. Under CPLR 3211 (subd. [a]), the court may grant such relief even though defendant has not asked for it.

A court may treat a motion brought under CPLR 3211(a)(1) as a motion under (a)(7) when it is actually based on failure to state a cause of action.

Nitschke v. Nitschke · filed 1971-04-01(a)(7)

This motion is brought pursuant to CPLB. 3211 (subd. [a], par. 1). In reality it is a motion to dismiss for failure to state a cause of action (CPLB 3211, subd. [a], par. 7) and the court under the liberal provisions of the CPLB will treat it as such (CPLB 104).

Granting leave to amend a complaint does not preclude defendants from moving against the amended complaint.

Waters v. Moore · filed 1972-06-05(e)

The defendants, however, should not thereby be precluded from moving as they see fit with regard to the amended complaint (see CPLR 3211 subd. [e]) and leave to do so is hereby granted (CPLR 3025, subd. [b]).

CPLR 3211(a) does not require a defendant to move to dismiss a facially inadequate libel claim.

Randaccio v. Retail Credit Co. · filed 1973-12-13(a)

Defendant is neither under an obligation to move for a dismissal of the complaint under CPLR 3211 (subd. [a]) nor to move for a more definite complaint under CPLR 3024 (subd. [a]).

CPLR § 3211(a)(7) requires the court to consider the petition in its entirety, resolve every fair inference in its favor, and assume its allegations are true when deciding whether it states a cause of action.

In re C. B. · filed 1975-03-18(a)(7)

Upon this motion the petition is considered in its entirety, with every fair inference resolved in its favor and with the allegations therein assumed to be true for the purpose of this motion.

Section 3211 permits a court to treat properly served objections as grounds for a motion to dismiss a complaint.

Bradley v. Ward · filed 1975-04-15

For these reasons, the court will consider the objections as bases for a motion to dismiss the complaint pursuant to CPLR 3211.

CPLR 3211(c) permits the court to order an immediate trial of factual issues raised on a motion to dismiss when that will expedite the case.

Sullivan v. Darling · filed 1975-04-24(c)

On balance, therefore, this court concludes that where a genuine factual issue is raised on a motion to dismiss or for summary judgment dismissing a complaint in an automobile negligence action on the ground that plaintiff has not sustained the requisite injury or special damages, that issue should be determined by an immediate trial, rather than at a plenary trial.

Section 3211(c) permits an immediate trial of disputed issues raised on a motion to dismiss when doing so will expedite the case.

Cocron v. Cocron · filed 1975-11-25(c)

This jurisdictional question should, however, be disposed of by the court expeditiously at the threshold of the litigation (Usher v Usher, 41 AD2d 368, 370, supra) and accordingly, the court will resort to the procedure set forth in CPLR 3211 (subd [c]), which provides that "The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion.”

Section 3211(a) does not permit dismissal of only part of a cause of action.

Mink Hollow Development Corp. v. State · filed 1976-05-24(a)

CPLR 3211 (subd [a]) does not by its language permit dismissal of part of a cause of action, an omission whose significance is underlined by the express provision for partial summary judgment in the succeeding rule.

On a motion to dismiss based on documentary evidence, the complaint’s allegations are treated as true and the pleading is liberally construed.

Vanderlinde Electric Corp. v. City of Rochester · filed 1976-11-05(a)(1)

On a motion made pursuant to CPLR 3211 (subd [a], par 1), the allegations of the complaint are deemed to be true and the pleading is to be liberally construed (Norman Co. v County of Nassau, 27 AD2d 936).

A court may not dismiss a complaint for failure to state a cause of action under CPLR 3211(a)(7) when the motion asserted only res judicata.

Syrang Aero Club, Inc. v. Foremost Insurance · filed 1976-11-05(a)(7)

Foremost correctly contends that inasmuch as the asserted ground for the motion was res judicata, and since the moving papers assigned no other ground, the order should be reversed (Mulonet v Lasky, 39 AD2d 922; Carney v American Fid. Fire Ins. Co., 29 AD2d 795).

Section 3211(d) permits denial of a motion to dismiss when discovery is needed to develop the facts.

5th & 46th Co. v. Dusenberry, Ruriani & Kornhauser, Inc. · filed 1977-05-19(d)

The full factual picture can best be obtained through pretrial discovery (CPLR 3211, subd [d]), and we find therefore that it was improvident at this juncture to dismiss the last four causes of action of the complaint.

Denial of a motion to dismiss for failure to state a cause of action does not bar a later motion for summary judgment.

Donrojill Realty Corp. v. Aetna Casualty & Surety Co. · filed 1977-06-06(a)(7)

The denial of defendant Designers Fore, Ltd.’s, prior motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211, subd [a], par 7) does not bar a motion for summary judgment (see CPLR 3212; Dietrich, Inc. v Brentwood Tel. Corp., 56 AD2d 753).

Section 3211 permits a court to dismiss a cause of action for failure to state a claim even when the motion seeks dismissal for lack of jurisdiction.

Underwood v. Underwood · filed 1977-09-07

Though defendant’s motion to dismiss is predicated on grounds of lack of jurisdiction, this court, given the power conferred upon it under CPLR 3211, does hereby dismiss plaintiff’s fourth cause of action on the ground that under the circumstances no cause of action lies for the relief therein stated.

Section 3211(c) permits a court to direct a separate trial of a timeliness issue raised on a motion to dismiss when the affidavits do not adequately resolve it.

Whitler Contracting Co. v. New York City Housing Authority · filed 1977-11-29(c)

We think the interests of justice will be better served by an exploration at a separate trial of the issues whether the certificate of final acceptance was filed in good faith and whether the defendant is estopped from insisting on the contractual limitation rather than deciding upon the affidavits, and for that purpose we direct a prior separate trial of the issue of timeliness. (CPLR 3211, subd [c].)

A motion to dismiss addressed to the pleadings is not the stage to determine the precise boundary between contract and tort damages when that determination depends on proof.

Sears, Roebuck & Co. v. Enco Associates, Inc. · filed 1977-12-21(a)

It would be inappropriate, however, on a motion addressed to the pleadings for us to attempt to delineate the precise line of demarcation in the law of damages between damages based on contract liability and those based on tort liability.

Section 3211(a)(7) permits a court to consider a motion styled as one for summary judgment as a motion to dismiss for failure to state a cause of action when both parties have treated it that way.

Committee for the Preservation of Fresh Meadows, Inc. v. Fresh Meadows Associates · filed 1978-03-15(a)(7)

Nevertheless, and since both parties have seen fit to consider the motion as being one "to dismiss the complaint for failure to state a cause of action” made pursuant to CPLR 3211 (subd [a], par 7), and also CPLR 3211 (subd [a], par 4), that there is another action pending, the court will consider the motion accordingly and will consider the attorneys’ affirmations as part of their respective memoranda of law.

CPLR 3211(d) permits a court to defer dismissal for discovery when affidavits show that facts essential to oppose the motion may exist but cannot yet be stated.

Peri v. State · filed 1978-12-21(d)

Pursuant to CPLR 3211 (subd [d]) the court allowed the claim to stand pending pretrial discovery when claimant will be in a position to properly postulate his causes of action. Such relief is within the discretion of the court and may be granted if it appears from the affidavits before the court on the motion that facts essential to justify opposition may exist but cannot then be stated. No such showing can be gleaned from the affidavits before the court. Denial of the State’s cross motion for failure to state a cause of action was an abuse of discretion and the cross motion should have been granted.

Denial of a preanswer motion to dismiss under § 3211 does not establish the law of the case on the sufficiency of defenses pleaded later.

General Instrument Corp. v. Fairchild Camera & Instrument Corp. · filed 1979-01-04

That decision did no more than to find, on the assumption of the truth of the complaint’s allegations, that a complaint, charging wrongdoing by an allegedly unfaithful employee and his seducer, had been stated and should not be dismissed. ... We do not agree that the "earlier determination by Special Term” constituted law of the case in evaluating sufficiency of these defenses, but we find, now that the question of sufficiency is actually before us, that, in respect of the fourth, eighth, and ninth defenses of Fairchild (repeated virtually verbatim as third, sixth, and seventh in Chung’s answer) that they are insufficient in the circumstances here found.

Section 3211 permits a party to seek dismissal for failure to state a cause of action or based on documentary evidence.

Lahti v. State · filed 1979-02-23(a)(7)

In this regard, we note that a motion under CPLR 3211 (subd [a], par 7) for failure to state a cause of action, unlike the common-law demurrer "is no longer limited to a consideration of the pleading itself but may consider extrinsic matter submitted by the parties in disposing of the motion." ... "The inquiry is whether the pleader has a cause of action rather than whether he has properly stated one."

Section 3211(a)(7) permits a defendant to raise a pleading defect by moving to dismiss the cause of action.

Clark v. City of New York · filed 1979-03-12(a)(7)

The defendant can then raise the defect either as a defense in the answer or by a motion to dismiss the cause of action pursuant to CPLR 3211 (subd [a], par 7).

Subdivision (c) permits the court to order an immediate trial of a fact issue that prevents decision of a CPLR 3211 motion.

Howard v. Spitalnik · filed 1979-03-01(c)

Appellant’s affidavit in support of the motion for an order dismissing the complaint or in the alternative a CPLR 3211 (subd [c]) hearing has clearly raised a genuine issue of fact. As noted by Professor Siegel: "If a fact issue appears in connection with a 3211 motion, whether brought under subdivision (a) or (b), and the motion cannot be decided until the issue is resolved, the court is expressly empowered by subdivision (c) to order an immediate trial of the issue” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY Book 7B, CPLR 3211, p 50.)

Section 3211(a)(7) permits dismissal for failure to state a cause of action, while section 3211(c) requires notice and an opportunity to submit papers before treating the motion as one for summary judgment.

Rose v. Cosgrove · filed 1979-06-01(a)(7), (c)

The court properly denied defendant’s motion under CPLR 3211 (subd [a], par 7) to dismiss plaintiff’s complaint to recover money in defendant’s possession taken from plaintiff at the time of her arrest on drug charges which were ultimately dismissed. It was error, however, for the court to treat the motion as one for summary judgment (CPLR 3211, subd [c]) without giving adequate notice to the parties of its intention to do so and affording them an opportunity to submit papers pertaining to the summary judgment motion (see Gronin v Dessau, 58 AD2d 566; Charitable Promotions v Anka, 58 AD2d 165).

CPLR 3211(a)(7) permits dismissal for failure to state a legally sufficient claim, while CPLR 3211(c) permits the motion to be treated as one for summary judgment after adequate notice.

Adelphia Lamps & Shades, Inc. v. 41 Madison Avenue Co. · filed 1979-06-26(a)(7) and (c)

The court at Special Term should not have granted the motion to dismiss since that motion was merely addressed to the legal sufficiency of the pleading under CPLR 3211 (subd [a], par 7). ... Therefore, we remand this matter to Special Term with the direction that adequate notice be given to the parties and that the motion be treated as one for summary judgment under CPLR 3211 (subd [c]).

A motion to dismiss under CPLR 3211 may be made at any time.

Quigley v. City of Oswego · filed 1979-07-06(e)

Such a motion can be made at any time (CPLR 3211, subd [e]; Higby Enterprises v City of Utica, 54 Misc 2d 405, affd 30 AD2d 1052).

Section 3211 permits dismissal at the pleading stage while assuming the pleading's factual allegations are true and does not permit the court to go beyond the pleadings to grant summary judgment.

Eastman Kodak Co. v. GAP Corp. · filed 1979-07-13

Special Term erred, however, in dismissing the fourth affirmative defense because assuming the factual allegations of the pleading to be true, as we must, patent invalidity is a valid defense to a State court contract action (CPLR 3211; Lear, Inc. v Adkins, 395 US 653; see, also, McCarthy, "Unmuzzling” the Patent Licensee: Chaos in the Wake of Lear v. Adkins, 45 Geo Wash L Rev 429). In dismissing, Special Term went beyond the pleadings and, in effect, granted summary judgment because the defense was "untimely".

Section 3211(c) permits the court to conduct an immediate trial of factual issues raised on a motion to dismiss.

Gilbert v. Lehman · filed 1979-12-14(c)

... court should have exercised its discretion under either CPLR 2218 or CPLR 3211 (subd [c]) to conduct an immediate trial thereon, as was done in Feinstein v Bergner (supra) (see Appendix, pp A52-A120, Feinstein v Bergner, supra) and in Lisi v Lang (286 App Div 771).

Section 3211(b) permits dismissal of an affirmative defense without requiring the defendant to make a factual showing supporting the defense's facial adequacy.

Blei v. Inter-Maritime Forwarding Co. · filed 1979-12-24(b)

We do not suggest, however, that the defendant was required to make any factual showing in support of the facial adequacy of its defenses in the context of a motion pursuant to CPLR 3211 (subd [b]) (see Raine v Allied Artists Prods., 63 AD2d 914).

Section 3211(d) permits a court to deny a motion to dismiss without prejudice to summary judgment when essential opposing facts may exist but are within the defendant's exclusive knowledge.

Wallace v. Liquid Carbonic Corp. · filed 1980-06-09(d)

In our view, it was proper to deny the respective motions to dismiss, without prejudice to motions for summary judgment upon joinder of issue and the completion of disclosure proceedings, on the ground that the facts essential to justify opposition may exist but cannot now be stated as they presently lie within the exclusive knowledge of the several defendants (see CPLR 3211, subd [d]).

Section 3211 permits a respondent to move to dismiss a petition for failure to state a cause of action under the rules governing such motions.

New York State AFL-CIO v. Stimmel · filed 1980-10-07

“Such a motion is tantamount to a demurrer, assumes the truth of the allegations of the petition, and permits no consideration of facts alleged in support of the motion” (Hondzinski v County of Erie, 64 AD2d 864). Such a motion is available only when the dispute is not of fact but of law. The facts alleged in the petition must be treated as true and should be considered in their most favorable light in support of the petitioner (see Matter of Mitchell v Yates County Sheriff’s Dept., 94 Misc 2d 724).

CPLR 3211(c) permits the court to order an immediate trial when the record is insufficient to resolve the issue raised on a motion to dismiss.

Back O'Beyond, Inc. v. Telephonic Enterprises, Inc. · filed 1980-06-23(c)

Under the circumstances of this case, an immediate trial of this issue is appropriate. (See CPLR 3211, subd [c]; cf. Usher v Usher, 41 AD2d 368.)

Section 3211(c) provides for an immediate trial to resolve a disputed factual issue bearing on whether an action is time barred.

Ryan v. Borg · filed 1982-05-17(c)

The date when the attorney-client relationship terminated, and hence, whether the action is time barred, cannot be established from the conflicting evidence in the record. Pursuant to CPLR 3211 (subd [c]) there should be an immediate trial to resolve this issue.

On a motion to dismiss for failure to state a cause of action, the court may search the record and dismiss a deficient claim against a nonmoving party.

Stylianides v. De Lorean Motor Co. · filed 1982-10-01(a)(7)

Indeed, a motion pursuant to CPLR 3211 (subd [a], par 7) searches the record. ... By a parity of reasoning, where the search of the record reveals a defect favorable to a nonmoving party, relief to that party ought to be available.

Section 3211(a)(5) permits dismissal on limitations grounds without a fact-finding hearing when the petition’s allegations, taken as true, leave no relevant factual dispute.

Filut v. New York State Education Department · filed 1982-12-09(a)(5)

Nor did Special Term err in dismissing the petition without a fact-finding hearing. Assuming all of the allegations in the petition to be true ... the plain meaning of the letters of March 3, 1980 and June 20, 1980 demonstrates that the rejection was final, obviating the relevance of any other facts which might possibly be developed upon a hearing.

Denial of a CPLR 3211(a)(7) motion does not bar a later motion for summary judgment.

Scott v. Transkrit Corp. · filed 1982-12-27(a)(7)

Moreover, the denial of defendant’s prior motion to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7), did not bar its subsequent motion for summary judgment (CPLR 3212; see Fink v Horn Constr. Co., 58 AD2d 574).

A court may treat a summary judgment motion as a motion under CPLR 3211(a)(7) when the parties address whether the complaint states a cause of action.

Ammirati v. New York City Transit Authority · filed 1983-01-03(a)(7)

Defendant has made a motion “for an order pursuant to CPLR 3212 granting summary judgment dismissing this suit”. ... It appears, then, that both sides are really addressing themselves to the question of whether the complaint states a cause of action (see CPLR 3211, subd [a], par 7). ... The motion is granted to the extent of dismissing the complaint for failure to state a cause of action.

CPLR 3211 provides an additional defendant a motion to dismiss an improperly brought counterclaim.

Lane v. Lizza · filed 1983-01-10

The remedy for the additional defendant, if such a counterclaim is improperly brought, is to move to dismiss it pursuant to CPLR 3211 (see Williams v Edward DeV. Thompkins, Inc., 208 App Div 574; 5 Carmody-Wait 2d, NY Prac, § 31:31).

Section 3211(c) requires a jury trial of a factual issue raised on a motion to dismiss when a jury has been demanded in a jury-triable action and an adverse finding would prevent the plaintiff from suing again.

Cerrato v. Thurcon Construction Corp. · filed 1983-03-03(c)

A contrary interpretation of CPLR 3211 (subd [c]), and the one with which we concur, is that expressed by Professor Siegel in the Practice Commentary. ... Since a finding adverse to appellants on this subject will terminate all future proceedings in the case, they are entitled to a jury trial.

Section 3211(c) permits a court to order a separate trial of factual issues raised by a pretrial motion, with that discretion exercised before trial of the action begins.

Brown v. Micheletti · filed 1983-10-31(c)

The discretion conferred by CPLR 2218, 3211 (subd [c]) and 3212 (subd [c]) to grant separate trials of issues of fact raised by pretrial motions is to be exercised prior to, and not during the course of the trial of the action, so that the resulting ruling, reduced to an order prior to trial of the action, is appealable.

CPLR 3211(a)(7) permits an appropriate issue to be resolved by motion to dismiss, and parties who fail to object acquiesce in that procedure.

Schmidt v. Magnetic Head Corp. · filed 1983-11-14(a)(7)

We also note that the issue before us is properly resolved by motion under CPLR 3211 (subd [a], par 7) (see 805 Third Ave. Co. v M. W. Realty Assoc., 58 NY2d 447) and, in any event, by failing to object, the parties are deemed to have acquiesced in this procedure (Stevenson v News Syndicate Co., 302 NY 81, 87; Ballentine & Sons v Boston Celtics Basketball Club, 36 AD2d 914).

Section 3211(c) allows an immediate trial of a factual dispute over accrual when the plaintiff’s proof raises a material question about whether the action is time barred.

Phillips Construction Co. v. City of New York · filed 1984-02-14(c)

In some instances the counter proof tendered by a plaintiff might call for an immediate trial of a factual dispute as to when the cause of action alleged in the complaint accrued as prerequisite to a determination whether it was time barred (CPLR 3211, subd [c]). In the present case, however, plaintiff’s submission is insufficient to raise any material question of fact on the issue.

A CPLR 3211 motion made before joinder of issue addresses the face of the pleading, with the plaintiff receiving every favorable inference.

Guadagno v. Colonial Cooperative Insurance · filed 1984-05-17

Inasmuch as defendant’s motion was made prior to joinder of issue (CPLR 3211), it was necessarily addressed to the face of the pleading (Frank Corp. v Federal Ins. Co., 91 AD2d 31, 37). At this stage, neither party has been put to its proof. Giving her the benefit of every favorable inference, a reasonable chance exists that plaintiff might prevail.

A CPLR 3211 motion to dismiss claims in an amended complaint must be considered on its merits rather than treated as a motion to reargue the order allowing amendment.

Cruz v. S & S Corrugated Paper Machinery Co. · filed 1984-06-11

Although Special Term erred in treating the motion of defendant S & S to dismiss the second and third causes of action asserted in plaintiffs’ amended complaint as against it pursuant to CPLR 3211 as a motion to reargue plaintiffs’ previously granted motion to amend the complaint, an examination of the merits of the motion of defendant S & S discloses that those causes of action set forth in the amended complaint as against it cannot be dismissed as a matter of law.

On a CPLR 3211 motion to dismiss, courts treat the complaint’s allegations as true, give them every favorable inference, and may consider affidavits.

State v. Schenectady Chemicals, Inc. · filed 1984-07-26

In reviewing a CPLR 3211 motion to dismiss, we deem the allegations of the complaint to be true and accord them every favorable inference (MacDonald v Howard, 91 AD2d 1119, 1120). Affidavits may properly be considered (Rovello v Orofino Realty Co., 40 NY2d 633, 635).

A motion to dismiss a complaint with multiple causes of action may be addressed claim by claim when the moving papers particularize the reasons for dismissing each claim.

Martirano Construction Corp. v. Briar Contracting Corp. · filed 1984-10-29(a)(7)

In the instant case, however, Tishman and Girl Scouts specifically particularized the reasons why the respective causes of action should be dismissed against them. Accordingly, although dismissal of each and every cause of action is sought, it is our view that the moving papers sufficiently particularized each individual claim and the reasons for seeking dismissal of each (see Brush v Olivo, supra, p 853). We therefore address the motion to dismiss as applying to each cause of action separately.

A motion to dismiss addressed to the entire complaint may be considered separately as to each cause of action when the movant specifies why each should be dismissed.

Halpern v. Halpern · filed 1985-03-18

Although the defendants’ motion to dismiss was addressed to the entire complaint, the defendants particularized why each of the respective causes of action should be dismissed against them. Accordingly, we may address the motion as applying to each cause of action separately (Pollonow v Poughkeepsie Newspapers, 107 AD2d 10; Martirano Constr. Corp. v Briar Contr. Corp., supra).

Section 3211(c) permits a court to refer factual issues raised by a dismissal motion for a hearing when the submitted papers cannot resolve them.

Cahill v. Pienkos · filed 1985-04-25(c)

Special Term’s reference of the motions to Trial Term was a proper exercise of its discretion (see, CPLR 3211 [c]). Where an issue of fact arises in the context of a motion that cannot be decided on the papers submitted, it is within Special Term’s discretion to refer the factual issue to the Trial Calendar (see, State Tax Commn. v Best Pontiac, 119 Misc 2d 233, 237; see also, 22 NYCRR 1155.13 [a] [relating to calendar and practice rules in Erie and Niagara Counties]).

Section 3211(d) does not require discovery before dismissal when claims that additional evidence exists are speculative.

Klein v. Jamor Purveyors, Inc. · filed 1985-05-20(d)

There is no merit to plaintiff’s contention that before ordering dismissal, Special Term should have permitted discovery to go forward pursuant to CPLR 3211 (d) to enable plaintiff to discover additional facts to oppose the defendants’ motion to dismiss. We agree with Special Term that plaintiff’s arguments concerning the existence of additional evidence establishing the oral agreement were speculative and consequently insufficient on a motion to dismiss (see, Yorktown Sq. Assoc. v Union Dime Sav. Bank, 79 AD2d 1040).

Section 3211 permits a court to dismiss a complaint on its own initiative for failure to state a cause of action.

Waterman v. Waterman · filed 1985-05-24(a)(7)

The question now becomes whether the court may, sua sponte, dismiss a complaint for divorce on a motion for pendente lite relief? The court answers this question in the affirmative.

Section 3211(f), together with CPLR 3025(a), permits timely service of an amended complaint before an order dismissing the action without leave of court.

Ed Moore Advertising Agency, Inc. v. I.H.R., Inc. · filed 1985-10-28(f)

We find that service of the amended complaint by plaintiff prior to Special Term’s order dismissing the action was timely under CPLR 3025 (a); 3211 (f), and thus did not require leave of court.

CPLR 3211(f) gives a defendant who moves to dismiss 10 days to answer after service of the order deciding the motion with notice of entry.

De Falco v. JRS Confectionary, Inc. · filed 1986-03-24(f)

Since the plaintiffs failed to serve a copy of the order with notice of entry upon JRS, its time to answer was not limited (see, Charshee v Geraghty, 198 NYS2d 686). Therefore, JRS was not in default for failing to serve an answer, and its cross motion for leave to serve an answer should have been granted.

Section 3211(f) does not extend the time to respond to a CPLR 3213 motion for summary judgment in lieu of complaint because that procedure does not call for a responsive pleading.

Union National Bank v. Pacamor Bearings, Inc. · filed 1986-05-08(f)

Since no such pleading is envisioned by CPLR 3213, CPLR 3211 may not be utilized to avoid addressing the merits on the initial return of the motion.

Section 3211(f) gives a party an opportunity to answer before judgment is granted after its motion to dismiss is denied.

SRW Associates v. Town Board of Brookhaven · filed 1986-06-30(f)

Nevertheless, Special Term should not have deprived the appellants-respondents the opportunity to submit an answer before granting judgment to the petitioner (see, CPLR 7804 [f]; 3211 [f]; Matter of Rubin v Board of Educ., 71 AD2d 606).

A prior motion under CPLR 3211(a)(7), followed by entry of judgment without notice to the parties, does not bar a later summary judgment motion as successive.

Scacchetti v. Gannett Co. · filed 1986-09-26(a)(7)

Special Term erred in determining that defendant’s summary judgment motion is barred by the rule prohibiting successive summary judgment motions. Defendant’s prior motion was made pursuant to CPLR 3211 (a) (7) and the court’s entry of judgment was without notice to the parties (Scacchetti v Gannett Co., 90 AD2d 985).

Section 3211(e) bars a second preanswer motion to dismiss but permits other nonjurisdictional grounds to be raised as affirmative defenses and pursued after issue is joined.

Hertz Corp. v. Luken · filed 1987-01-15(e)

A preanswer motion to dismiss based on one of the grounds set forth in CPLR 3211 (a) does not effect a waiver of the other grounds set forth in CPLR 3211 (a), except for those relating to personal and in rem jurisdiction set forth in CPLR 3211 (a) (8) and (9). If the preanswer motion is denied, these other grounds can then be raised as affirmative defenses in the answer, and moved upon after issue is joined (CPLR 3211 [e]).

Section 3211(f) governs the time to serve an answer after a motion to dismiss is denied.

New York City Coalition to End Lead Poisoning v. Koch · filed 1987-01-20(f)

The municipal defendants are granted leave to serve an answer pursuant to CPLR 3211 (f) within 30 days of receipt of a copy of this order with notice of entry.

A CPLR 3211(a)(7) motion tests the sufficiency of the pleadings, and its denial does not bar a later motion for summary judgment.

Tenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, Inc. · filed 1987-03-26(a)(7)

Because the two motions are distinguishable, the denial of a prior motion to dismiss a complaint for failure to state a cause of action does not bar a subsequent motion for summary judgment.

Denial of a CPLR 3211 motion does not bar a later motion for summary judgment under CPLR 3212.

Perritano v. Perone · filed 1987-05-04

In September 1984 the defendant moved to dismiss the complaint pursuant to CPLR 3211 upon the grounds of failure to state a cause of action and that the action was barred by the Statute of Limitations. ... the fact that that motion was denied (Buell, J.), did not bar the defendant’s subsequent motion for summary judgment pursuant to CPLR 3212 (see, Scott v Transkrit Corp., 91 AD2d 682; Fink v Horn Constr. Co., 58 AD2d 574).

A motion under CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action is moot when the plaintiff is granted leave to serve an amended complaint.

Covert Avenue Apartments, Inc. v. Town of Babylon · filed 1987-11-02(a)(7)

As to the defendant Town of Babylon’s motion to dismiss the complaint as against it for failure to state a cause of action (see, CPLR 3211 [a] [7]), we hold that the issue is moot since the plaintiff has been granted leave to serve an amended complaint.

Section 3211(e) does not prevent a party from amending a pleading as of right under CPLR 3025(a) after a motion to dismiss is filed.

Sholom & Zuckerbrot Realty Corp. v. Coldwell Banker Commercial Group, Inc. · filed 1988-02-17(e)

CPLR 3211 (e) should not be read so as to obviate the availability of an amendment as of right under CPLR 3025 (a).

A court may review the adequacy of a complaint on its own initiative, particularly when the plaintiff identifies no specific allegations to add.

Weiss v. Weiss · filed 1988-03-14(c)

A court has the authority to review the adequacy of the complaint sua sponte (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:40; see generally, CPLR 3211 [c]), particularly where the plaintiff does not indicate she had any further specific allegations to add to the complaint.

Denial of a motion to dismiss for failure to state a cause of action does not bar a later motion for summary judgment.

Pappas v. Harrow Stores, Inc. · filed 1988-05-16(a)(7)

Contrary to the assertion made by the plaintiff before the Supreme Court and at oral argument on appeal, denial of Harrow’s motion to dismiss the complaint for failure to state a cause of action did not bar its subsequent motion for summary judgment (see, Scott v Transkrit Corp., 91 AD2d 682).

A motion under CPLR 3211(a)(7) directed at an entire complaint fails if any one cause of action is sufficient.

Gedan v. Home Insurance · filed 1988-11-07(a)(7)

The defendants’ motion to dismiss the amended complaint is defeated upon the finding of one sufficient cause of action (Martirano Constr. Corp. v Briar Contr. Corp., 104 AD2d 1028, 1029-1030).

CPLR 3211 motions test whether a valid claim or defense is stated, not whether it can be proven.

F.H.R. Auto Sales, Inc. v. Scutti · filed 1988-11-15

Both motions sought relief under CPLR 3211 and thus, the pertinent issue was whether a valid claim or defense was stated, not whether one could be proven (O’Henry’s Film Works v Nabisco, Inc., 112 AD2d 825; Paul v Hogan, 56 AD2d 723).

A motion labeled as one for summary judgment may be treated as a motion to dismiss under CPLR 3211(a)(5) when it seeks dismissal based on Statute of Frauds and Statute of Limitations defenses.

Fafoutis v. Lyons · filed 1989-04-17(a)(5)

In February 1987, the defendants made a motion, which although characterized as one for summary judgment (CPLR 3212), was, in substance, to dismiss the complaint pursuant to CPLR 3211 (a) (5), based on the affirmative defenses of the Statute of Frauds and the Statute of Limitations.

A motion may be treated as a CPLR 3211(a)(7) motion based on the arguments in its moving papers.

Tibodeau v. Abrahams · filed 1999-04-05(a)(7)

Contrary to the defendants’ contention, the Supreme Court properly treated their motion as having been made pursuant to CPLR 3211 (a) (7) in view of the arguments presented in the moving papers.

A motion labeled as a CPLR 3211(a)(2) motion is treated according to its substance when it actually seeks summary judgment.

Milne v. Cheema · filed 2000-03-28(a)(2)

Although defendant styled his motion as one pursuant to CPLR 3211 (a) (2), which can be made at any time, even after the commencement of trial (CPLR 3211 [e]; see also, Holz v Rinacente Props., 197 AD2d 669), the motion court correctly perceived the motion for what it plainly was, a CPLR 3212 motion masquerading as one brought pursuant to CPLR 3211.

On a preanswer motion to dismiss under CPLR 3211(a)(7), a defendant’s assertion that an allegedly defamatory statement is true is an affirmative defense to be raised in the answer.

Clark v. Schuylerville Central School District · filed 2005-12-29(a)(7)

Turning first to plaintiffs claim of libel based on Martin’s letter to the families of her students, defendants’ assertion that the statements in the letter are true is an affirmative defense to be raised in their answer and, thus, is not properly before us in this procedural context (see Garcia v Puccio, supra at 201).

On a preanswer motion to dismiss, the court must accept pleaded facts and opposition submissions as true and give the plaintiff every favorable inference.

Sotomayor v. Medifast, Inc. · filed 2006-04-13(a)(1), (a)(7)

Moreover, the court failed to “accept the facts as alleged in the complaint as true,” as well as any submissions in opposition to the dismissal motion, and “accord plaintiff! ] the benefit of every possible favorable inference” {Leon, 84 NY2d at 87).

On a preanswer motion under CPLR 3211, the defendant must establish grounds for dismissing the complaint.

Metro Kitchenworks Sales, LLC v. Continental Cabinets, LLC · filed 2006-07-25(a)(1) and (3)

Applying these principles in the context of a preanswer motion to dismiss pursuant to CPLR 3211, the defendant failed to establish that the Agreement was not a valid, binding, and enforceable contract made in June 2000 for or on behalf of a nonexistent principal and subsequently adopted, ratified, or accepted by the plaintiff after its formation. Accordingly, that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (3) should have been denied.

Section 3211 permits dismissal when documentary evidence conclusively establishes a defense, the statute of frauds bars the claim, or the complaint fails to state a cause of action.

Passero v. Siciliano · filed 2007-02-02(a)(1), (a)(5), (a)(7)

Supreme Court properly denied defendants’ cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7). ... Thus, contrary to the contention of defendants, the documentary evidence submitted by them does not conclusively establish a defense to the asserted claims as a matter of law (see CPLR 3211 [a] [1]; ...). Defendants also failed to establish in support of their motion that there was a violation of the statute of frauds (see General Obligations Law § 5-703 [3]; CPLR 3211 [a] [5]). ... Finally, defendants failed to establish as a matter of law that plaintiffs failed to state a cause of action because the contract is void for illegality based on plaintiffs’ alleged intent to defraud taxing authorities (see CPLR 3211 [a] [7]; ...).

CPLR 3211(a) requires courts reviewing the sufficiency of a pleading to give its allegations their most favorable interpretation.

Miniero v. City of New York · filed 2007-02-07(a)

When the sufficiency of the pleadings is attacked, the allegations contained in the complaint, as supplemented by the moving papers, “must be given their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442 [1982], cert denied 459 US 1146 [1983]; Dulberg v Mock, 1 NY2d 54, 56 [1956]).

Section 3211 requires courts deciding a motion to dismiss to accept the truth of the plaintiff's allegations.

Tzolis ex rel. Pennington Property Co. v. Wolff · filed 2007-02-08

Accepting the truth of plaintiffs’ allegations, as CPLR 3211 requires on a motion to dismiss (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]), they advance a potentially viable claim for breach of fiduciary duty (see Limited Liability Company Law § 409 [a]; Birnbaum v Birnbaum, 73 NY2d 461, 465-466 [1989]; Salm v Feldstein, 20 AD3d 469 [2005] ).