N.Y. C.P.L.R. § 3211

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff’s allegations and conclusively establishes a defense as a matter of law, while subsection (a)(7) requires accepting pleaded facts as true and determining whether they fit any cognizable legal theory.

Mendelovitz v. Cohen · filed 2007-02-20(a)(1), (a)(7)

A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law ... In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory.

Section 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, while section 3211(a)(1) permits dismissal when documentary evidence conclusively contradicts the allegations.

Rivietz v. Wolohojian · filed 2007-03-13(a)(1) and (a)(7)

On a motion to dismiss for failure to state a cause of action, the complaint should be liberally construed, the facts presumed to be true, and the pleading accorded the benefit of every possible favorable inference (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). But where the legal conclusions and factual allegations are “flatly contradicted by documentary evidence,” they are not presumed to be true or accorded every favorable inference (Kliebert v McKoan, 228 AD2d 232, 232 [1996], lv denied 89 NY2d 802 [1996]), and the criterion becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Section 3211(a)(7) permits dismissal for failure to state a legally sufficient cause of action, while accepting the complaint’s allegations as true and drawing favorable inferences for the plaintiff.

Lobel v. Maimonides Medical Center · filed 2007-04-10(a)(7)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 3, 2006, which, to the extent appealed from as limited by the briefs, denied so much of defendants’ motion pursuant to CPLR 3211 (a) (1), (5) and (7) as sought dismissal of plaintiff’s third cause of action seeking a declaration that defendants procured plaintiffs execution of a release by misrepresentation, and granted so much of the motion as sought dismissal of that portion of the second cause of action alleging that defendant Maimonides Medical Center improperly terminated plaintiffs hospital privileges, dismissal of the fourth cause of action alleging breach of employment agreements and implied covenants of good faith and fair dealing, and dismissal of the fifth cause of action against defendant Richard V. Grazi alleging tortious interference with existing or prospective contract or business relations, unanimously affirmed, without costs. ... Accepting the facts alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the court properly denied defendants’ motion to dismiss that portion of the third cause of action seeking a declaration that plaintiff was not subject to a release allegedly procured by misrepresentation.

CPLR 3211 permits the court to reach the merits without first allowing movants to serve an answer when the dispositive facts are undisputed and the parties' arguments are fully set forth in the record.

Laurel Realty v. Planning Board · filed 2007-05-15

In the first instance, since the dispositive facts were undisputed, and the arguments of the parties were fully set forth in the record before the Supreme Court, that court properly reached the merits of the petition and the converted summary judgment motion without having provided the movants the opportunity to serve an answer pursuant to CPLR 7804 (f) and 3211 (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102 [1984]; Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 35 AD3d 465 [2006], lv dismissed in part, lv granted in part 8 NY3d 913 [2007]; Matter of Intermor v Board of Trustees of Inc. Vil. of Malverne, 286 AD2d 330 [2001]; Matter of Dougherty v Mammina, 261 AD2d 400 [1999]).

CPLR 3211 permits dismissal for failure to state a cause of action or when documentary evidence conclusively establishes a defense, while allowing repleading under subsection (e).

Advanced Global Technology, LLC v. Sirius Satellite Radio, Inc. · filed 2007-10-02(a)(1), (a)(7), and (e)

The motion court correctly held pursuant to CPLR 3211 (a) (7), that these allegations, on their face, show that Sirius’s interference was neither wrongful nor motivated solely by malice, as opposed to its normal economic interest ... We note however, that to the extent that the court relied on the September 26, 2006 e-mail from KRI to AGT detailing KRI’s communications with Sirius as an additional ground for dismissal pursuant to CPLR 3211 (a) (1), it was in error.

A court may treat a CPLR 3211(a)(7) motion as a CPLR 3211(a)(5) motion to dismiss for untimeliness when the parties addressed limitations and tolling and no party was prejudiced.

Schrank v. Lederman · filed 2008-06-03(a)(5)

Initially, although SIUH denominated its motion as one to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the Supreme Court was within its authority to treat the motion as one to dismiss for untimeliness pursuant to CPLR 3211 (a) (5), particularly as all parties addressed the statute of limitations and tolling issues in their submissions and no party was prejudiced thereby (see generally Greene v Davidson, 210 AD2d 108, 109 [1994]).

A party opposing a pre-answer motion to dismiss under CPLR 3211 need only assert evidentiary facts that fit a cognizable legal theory.

Chen v. Yeung · filed 2011-09-09

To defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only assert facts of an evidentiary nature which fit within any cognizable legal theory.

A motion to dismiss an amended pleading may proceed after a motion against the original pleading was denied as moot, even if the earlier denial did not expressly permit renewal.

Verizon New York, Inc. v. Optical Communications Group, Inc. · filed 2011-12-01

Verizon and ECS moved to dismiss the original counterclaims but that motion was denied as moot after OCG was granted leave to amend. OCG argues in its principal brief that the instant motion should have been denied because the denial of the original motion did not expressly state that it was without prejudice to renewal upon receipt of the amended pleading. The argument fails since the denial was clearly not on the merits.

CPLR 3211 does not govern a motion expressly made for summary judgment under CPLR 3212.

Hair Studio 441, Inc. v. Boccone · filed 2013-03-27

We note that since Boccone and Lamm moved for summary judgment dismissing the complaint insofar as asserted against each of them, citing to CPLR 3212, the Supreme Court incorrectly treated the motions as having been made pursuant to CPLR 3211.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while (a)(7) requires the court to accept the alleged facts as true and give plaintiffs every favorable inference.

Choudhary v. First Option Title Agency · filed 2013-06-05(a)(1), (a)(7)

A motion to dismiss a cause of action pursuant to CPLR 3211 (a) (1) may be granted if “documentary evidence utterly refutes [the] plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012] [citations and internal quotations marks omitted]). On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), a court must “accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (id. [internal quotation marks omitted]).

On a CPLR 3211(a)(3) motion challenging capacity based on an allegedly invalid power of attorney, the movant must first produce evidence of incapacity before the burden shifts to the plaintiff.

Pruden v. Bruce · filed 2015-06-11(a)(3)

In support of their motion to dismiss pursuant to CPLR 3211 (a) (3), Montefiore asserted that Spinner was not competent to execute the power of attorney. ... Since Montefiore failed to submit any evidence concerning Spinner’s competence at the time she executed the power of attorney, other than the document itself, it did not meet its initial burden in support of the motion, and the burden did not shift to plaintiff to demonstrate competency.

A court may decline to consider a CPLR 3211(a)(7) defense first raised in reply.

Kellogg v. All Saints Housing Development Fund Co. · filed 2017-01-19(a)(7)

We decline to consider 1916 Park’s 3211 (a) (7) defense, which was first raised in reply (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]).

A motion to dismiss under CPLR 3211 is not fatally defective merely because it does not specifically cite the section when its dismissal ground is clear and the opposing party suffers no prejudice.

Matter of Beer v. Village of New Paltz · filed 2018-07-12

As an initial matter, we reject petitioners' assertion that respondents' motions were defective because respondents failed to specifically cite to CPLR 3211.

Section 3211 permits a defendant to seek dismissal before answering, but factual issues that cannot be resolved at that stage may make dismissal premature.

Morgan v. Worldview Entertainment Holdings, Inc. · filed 2019-03-14(a)(1), (a)(7)

It is premature to determine on this pre-answer motion to dismiss whether it was reasonable for the Goetz Defendants to include Worldview Inc.'s "parents, successors, predecessors, divisions, affiliates, and assigns" in the contract, especially without defining "affiliate" ( see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP , 79 AD3d 437, 439 [1st Dept 2010]).

A CPLR 3211(a) dismissal cannot rest on arguments first raised in reply when the opposing party had no opportunity to respond and was prejudiced.

Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC · filed 2021-08-18(a)

The Supreme Court erred in considering P & C Merrick's contention, raised for the first time in reply, that it intended to move pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it rather than moving for summary judgment dismissing the complaint insofar as asserted against it. ... As these new legal arguments were the basis for directing dismissal of the causes of action alleging specific performance and breach of contract, the plaintiff was prejudiced, and the Supreme Court erred in directing dismissal of those causes of action.

Standing must exist when an action begins; later acquisition of ownership does not cure its absence.

Wilmington Trust, N.A. v. Board of Mgrs. 229 W. 43rd St. Condominium · filed 2025-04-11(a)(3)

The Lenders’ lack of standing at the time this action was initiated is incurable.

On a motion to dismiss for lack of standing, the moving defendant must establish the plaintiff’s lack of standing as a matter of law.

New York Community Bank v. McClendon · filed 2016-04-13(a)(3)

On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law (see Arch Bay Holdings, LLC-Series 2010B v Smith, 136 AD3d 719 [2016]; Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]; HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983, 984 [2015]).

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

Arch Bay Holdings, LLC-Series 2010B v. Smith · filed 2016-02-10(a)(3)

On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]).

CPLR 3211(a)(3) permits dismissal when a plaintiff has assigned its claims and is no longer the real party in interest.

Lehr Associates Consulting Engineers, LLP v. Daikin AC (Americas) Inc. · filed 2015-11-24(a)(3)

Orders, Supreme Court, New York County (Eileen Bransten, J.), entered April 15, 2014, which granted defendants’ motions to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7), unanimously affirmed, with costs. ... Plaintiff has no standing to maintain this suit, because after it assigned its claims against defendants to nonparty Timber Falls Foundation, it was “no longer the real party in interest” (see James McKinney & Son v Lake Placid 1980 Olympic Games, 61 NY2d 836, 838 [1984]).

CPLR 3211(a)(3) permits dismissal of a petition and complaint when the petitioner lacks standing.

Riverhead PGC, LLC v. Town of Riverhead · filed 2010-05-11(a)(3)

Accordingly, those branches of the appellants’ motions which were pursuant to CPLR 3211 (a) (3) to dismiss the petition/complaint insofar as asserted against each of them should have been granted, and the Supreme Court should have dismissed the proceeding and action insofar as asserted against them.

CPLR 3211(a)(3) permits dismissal of a petition for lack of standing.

Harris v. Town Board of Riverhead · filed 2010-05-11(a)(3)

Accordingly, the Supreme Court should have granted those branches of the respondents’ respective motions which were pursuant to CPLR 3211 (a) (3) to dismiss the petition, and the proceeding should have been dismissed for lack of standing.

Section 3211(a)(3) permits dismissal of a foreclosure complaint when the plaintiff lacked standing to bring the action.

Countrywide Home Loans, Inc. v. Gress · filed 2009-12-01(a)(3)

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the motion of the defendant Anthony Gress which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (3) on the ground that the plaintiff lacked standing to bring this action.

On a motion to dismiss under CPLR 3211(a)(3), the complaint and documents it references can establish as a matter of law that the plaintiff lacks standing.

Pullman Group, L. L. C. v. Prudential Insurance Co. of America · filed 2001-11-01(a)(3)

We affirm the granting of defendants’ motion to dismiss the complaint. As to the 20 causes of action dependent on plaintiffs standing to assert trade secret claims, the allegations of the complaint and the contents of the documents referenced therein establish, as a matter of law, that plaintiff lacks such standing.

Section 3211(a)(7) permits dismissal for failure to state a cause of action when the plaintiffs lack standing to enforce the contract at issue.

Truty v. Federal Bakers Supply Corp. · filed 1995-07-14(a)(7)

Because the subject matter of the action is a contract to which the individual plaintiffs are not parties, plaintiffs have no standing to bring the action (see, Wells v Merrill, 204 App Div 696, 698-699). Thus, the action should have been dismissed for failure to state a cause of action (see, CPLR 3211 [a] [7]).

Section 3211(a)(3) permits a motion to dismiss that challenges a plaintiff’s standing to bring the action.

City of Buffalo v. State Bd. of EqualizaTion · filed 1965-06-11(a)(3)

The motion under CPLR 3211 (subd. [a], par. 3) effectively questions the status of the plaintiffs to institute the within action and erects in their path a hurdle of considerable magnitude.

Section 3211(a)(3) does not support dismissal for lack of capacity when the plaintiff has an independent right under the agreement to seek the requested relief.

Cypress Hills Cemetery v. Werner & Acker Cypress Hills Florists, Inc. · filed 1967-02-06(a)(3)

The clear expression of that provision is that plaintiff and the plot owners each have an independent right to seek termination of the agreement on either of the stated grounds. While thus disagreeing with Special Term’s holding that plaintiff has no capacity to sue, we are mindful of the weakness of the present amended complaint, in that it merely avers that the plot owners “ have been adversely affected by the agreement ”, Defendant is entitled to a more precise and clearer expression of the grounds upon which plaintiff seeks termination of the agreement (CPLR 3013; 3024, subd. [a]).

Section 3211 does not require dismissal for lack of capacity or disability when individuals sue on a contract they signed in their own right, even though their corporation is a debtor in possession.

Zeidler v. Astrosystems, Inc. · filed 1972-05-08(a)(3), (a)(5)

Order reversed insofar as appealed from, with $10 costs and disbursements, and said branch of defendant’s motion denied. ... The fact that the corporation was a debtor in possession pursuant to chapter XI of the Bankruptcy Act did not preclude the three individuals who signed the contract in their own right from bringing this action.

Allegations of threatened injury to a plaintiff’s personal rights can defeat a motion to dismiss for lack of standing or legal capacity.

Nowack v. Department of Audit & Control · filed 1973-01-15(a)(3)

The motion to dismiss the complaint upon the ground that plaintiffs lack standing to maintain this action and have no legal capacity is without merit. In the complaint and motion papers plaintiffs allege a threatened injury to their personal rights and thus claim they are personally aggrieved and accordingly have standing to challenge the action by the Division for Youth.

CPLR 3211(a)(3) permits dismissal of a corporation’s action when the person directing it was never properly appointed as an officer and lacked authority to commence the suit.

Concrete Construction Systems, Inc. v. Jensen · filed 1978-11-03(a)(3)

In response, defendant moved to stay the action until the completion of the proceeding, simultaneously commenced by him, to dissolve the corporation or, alternatively, to dismiss the action pursuant to CPLR 3211 (subd [a], par 3) based upon the asserted legal incapacity of the plaintiff to sue. ... Defendant’s motion to dismiss, however, should have been granted on the basis that Parks is not a corporate officer.

CPLR 3211(a)(3) does not require dismissal when a plaintiff seeks to protect its own interests, even if the challenged conduct also affects others.

Parkmed Co. v. Pro-Life Counselling, Inc. · filed 1981-08-10(a)(3)

Defendants, in their cross motion, contend that plaintiffs lack standing to bring the suit and as such the action must be dismissed pursuant to CPLR 3211 (subd [a], par 3). This contention is without merit. Plaintiff has clearly shown that defendants’ demonstrations have directly and substantially interfered with the normal functioning of the health care facility. Plaintiff clearly has its own interests to protect, and the fact that others are affected by defendants’ actions does not deprive plaintiff of standing to pursue this action.

Section 3211 dismissal for lack of standing is inappropriate when facts that could determine standing remain disputed.

S.C.S. Enterprises, Inc. v. Iafrate · filed 1994-06-06

The parties dispute whether the plaintiff scheduled the allegedly converted assets with the bankruptcy court, and whether the trustee abandoned those assets, which facts, if undisputed, could have been determinative of the plaintiff’s standing to bring this action. Thus, dismissal on that ground is inappropriate (see, American Cement Corp. v Dunetz Bros., 47 Misc 2d 747; cf., DeLarco v DeWitt, 136 AD2d 406, 408).

Section 3211(a)(3) permits dismissal when a party lacks legal capacity to sue, and the court ruled on the motion challenging the plaintiffs' standing and capacity.

Greens at Half Hollow, LLC v. Town of Huntington · filed 2006-09-18(a)(3)

Accordingly, the Town’s motion to dismiss (sequence No. 005) the actions on the grounds of standing is denied in its entirety.

CPLR 3211(a)(3) permits dismissal of a complaint for lack of standing.

Village of Pomona v. Town of Ramapo · filed 2007-06-26(a)(3)

Accordingly, the Supreme Court erred in denying that branch of the motion of the Town and the Water District which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against them for lack of standing.

Section 3211(a)(3) permits dismissal when the plaintiff lacks standing to commence the action.

Kolkunova v. Guaranteed Home Mortgage Co. · filed 2007-09-11(a)(3)

However, the plaintiff lacked any interest in the premises at the time of commencement of this action and therefore lacked standing to commence an action to reinstate her right to redeem the property (see CPLR 3211 [a] [3]; Ocwen Fed. Bank v Bassi, 294 AD2d 478 [2002]; Scheckter v Emigrant Sav. Bank, 237 AD2d 273, 274 [1997]; Katzeffv Cohn, 139 Misc 2d 1076, 1077 [1988]).

CPLR 3211(e) waives a lack-of-standing defense when a defendant answers without asserting it.

Countrywide Home Loans, Inc. v. Taylor · filed 2007-09-20(e)

When a defendant answers a complaint and fails to assert lack of standing as a defense, such defense is waived pursuant to CPLR 3211 (e) (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2d Dept 2007]).

An objection to standing must be raised in a preanswer motion to dismiss or asserted as a defense in the answer.

Todaro v. GEICO General Insurance · filed 2007-12-13(e)

As an objection to standing must be made by a preanswer motion to dismiss or asserted as a defense in the answer (see CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657 [1983]), defendant’s motion on this basis is untimely.

CPLR 3211(a)(3) permits dismissal for lack of standing when the requested relief would be an advisory opinion with no immediate effect.

Hirschfeld v. Hogan · filed 2009-03-10(a)(3)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, ... that branch of the defendants’ cross motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (3) for lack of standing is granted, and those branches of the defendant’s cross motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7) are denied as academic.

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks standing to seek the requested relief.

Village of Elmsford v. Knollwood Country Club, Inc. · filed 2009-03-24(a)(3)

The Supreme Court erred in, upon reargument, adhering to so much of the order entered January 5, 2007 as denied that branch of the Town’s motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against it. “[A] plaintiff, in order to have standing in a particular dispute, must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law” (Caprer v Nussbaum, 36 AD3d 176, 183 [2006]).

A motion to dismiss a foreclosure complaint for lack of standing must be denied when the record leaves a factual question about whether the plaintiff held the note when it commenced the action.

Deutsche Bank National Trust Co. v. Rivas · filed 2012-05-15(a)(3)

Here, the issue of standing cannot be determined as a matter of law on this record (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]), because there is a question of fact as to whether the plaintiff was the lawful holder of the note when it commenced the action (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2007]; cf. Bank of N.Y. v Silverberg, 86 AD3d 274, 281-282 [2011]; TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2006]).

A defendant moving to dismiss for lack of standing under § 3211 bears the burden of proving that defense.

Justinian Capital SPC v. AG · filed 2012-08-15(a)(3)

A defendant raising the affirmative defense of lack of standing in a motion to dismiss bears the burden of proof on the issue.

Under CPLR 3211(a)(3), a plaintiff must prove standing once the defendant raises the issue.

Weiss v. Marked · filed 2013-10-16(a)(3)

However, those branches of the defendants’ motion which were, in effect, to dismiss those causes of action pursuant to CPLR 3211 (a) (3) should have been granted. ... The first three causes of action must be dismissed because the plaintiff failed to prove his standing after the issue of standing was raised by the defendants (see Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]).

Section 3211(a)(3) permits dismissal for lack of standing, but an LLC member and a holder of a beneficial interest may sue for distributions allegedly withheld from them individually.

Neary v. Burns · filed 2014-03-28(a)(3)

Thus, Neary and Benevento do not lack standing to maintain this action. Dismissal of this action, pursuant to CPLR 3211 (a) (3), must, therefore, be denied.

A motion to dismiss challenging standing is treated as a CPLR 3211(a)(3) motion.

Fitzpatrick v. County of Orange · filed 2014-06-16(a)(3)

Since no argument is advanced in this regard and respondents attack petitioners’ standing to sue, the court deems the reference as being to CPLR 3211 (a) (3).

CPLR 3211(a)(3) does not permit dismissal for lack of standing when a factual question remains about whether the foreclosure plaintiff held the note when it commenced the action.

US Bank National Ass'n v. Faruque · filed 2014-08-13(a)(3)

The Supreme Court erred, however in, in effect, granting that branch of Faruque’s cross motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against her on the ground that the plaintiff lacked standing to commence the action. Although the plaintiff failed to establish its entitlement to judgment as a matter of law on the complaint insofar as asserted against Faruque, the Supreme Court should not have directed the dismissal of the complaint.

A motion to dismiss for lack of standing under CPLR 3211(a)(3) is properly denied when a factual question prevents standing from being determined as a matter of law.

Federal National Mortgage Ass'n v. Cappelli · filed 2014-08-20(a)(3)

The Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211 (a) (3) for lack of standing. ... Here, the issue of standing cannot be determined as a matter of law on this record, because there is a question of fact as to whether the plaintiff was the lawful holder of the note when it commenced the action (see Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680, 683 [2012]; Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 1061, 1062 [2012]; HSBC Bank USA v Hernandez, 92 AD3d at 844).

On a CPLR 3211(a)(3) motion in a mortgage foreclosure action, proof that the plaintiff held the note when the action began is sufficient to defeat a standing challenge.

PHH Mortgage Corp. v. Israel · filed 2014-09-17(a)(3)

PHH Mortgage Corporation established that it was the holder of the subject mortgage note when it commenced this action, and thus, made a showing sufficient to warrant denial of that branch of the motion of the defendant Alisa B. Israel, also known as Alisa Israel (hereinafter the respondent) which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint based on the plaintiffs alleged lack of standing (see CPLR 3211 [a] [3]).

A request for documents concerning standing cannot be treated as a motion to dismiss for lack of standing under CPLR 3211(a)(3).

Deer Park Associates v. Town of Babylon · filed 2014-10-08(a)(3)

Nor can the appellants’ request for the production of documents pertaining to the plaintiffs’ allegations of standing be construed as a motion to dismiss for lack of standing (see CPLR 3211 [a] [3]), or as a motion for summary judgment on that ground (see CPLR 3212).

CPLR 3211(a)(3) permits dismissal of a claim when the plaintiff lacks standing.

Giuliano v. Gawrylewski · filed 2014-11-18(a)(3)

The court correctly dismissed plaintiff Joan Levy’s direct claims on the ground that she lacks standing (CPLR 3211 [a] [3]).

On a pre-answer motion to dismiss for lack of standing under Section 3211(a)(3), the defendant bears the burden of establishing prima facie that the plaintiff lacks standing.

Brunner v. Estate of Chaim Lax · filed 2016-03-15(a)(3)

Defendants failed to meet their burden on this pre-answer motion to dismiss pursuant to CPLR 3211 (a) (3) to establish prima facie that plaintiffs have no standing to sue on the promissory note (see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2d Dept 2015]).

Under CPLR 3211(a)(3), plaintiffs have standing to sue individually when corporations served as conduits for their funds and any recovery would go to the plaintiffs.

Bibbo v. Arvanitakis · filed 2016-12-07(a)(3)

Finally, the Supreme Court correctly denied that branch of the motion which was pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint in both actions insofar as asserted against Arvanitakis and the PLLC on the basis of the plaintiffs’ lack of standing. ... Here, the thrust of the allegations in the amended complaint was that the defendants targeted and defrauded the plaintiffs, and that the corporations were mere conduits of the funds. Any recovery would go to the plaintiffs, not the corporations. Accordingly, the court correctly determined that the plaintiffs had standing to bring the actions in their individual capacities.

CPLR 3211(a)(3) does not warrant dismissal for lack of capacity or standing when Chapter 13 debtors pursue claims for alleged harm to their own interests.

Nicke v. Schwartzapfel Partners, P.C. · filed 2017-03-29(a)(3)

Accordingly, the Supreme Court erred in granting those branches of the defendants' separate motions which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them for lack of capacity and/or standing to sue.

On a motion to dismiss for lack of standing, the moving defendant must establish the plaintiff’s lack of standing as a matter of law.

DLJ Mortgage Capital, Inc. v. Pittman · filed 2017-05-03(a)(3)

On a defendant’s motion to dismiss a complaint based upon the plaintiff’s alleged lack of standing, “the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing” as a matter of law (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at 59; see New York Community Bank v McClendon, 138 AD3d 805, 806 [2016]; Arch Bay Holdings, LLC-Series 2010B v Smith, 136 AD3d 719 [2016]).

A plaintiff may have standing to challenge a fee after selling the affected property when the fee reduced the sale price and the agreement entitles the plaintiff to recover any amount waived.

Westhampton Beach Associates, LLC v. Incorporated Village of Westhampton Beach · filed 2017-06-07(a)(3)

Contrary to the Village defendants’ contention, the plaintiffs sale of the property to a nonparty who was responsible for paying the Park Fee did not deprive the plaintiff of standing to challenge the constitutionality of Village Code § 197-63 (Q) (2).

On a motion to dismiss for lack of standing, the moving defendant must establish the plaintiff’s lack of standing prima facie as a matter of law.

Berger v. Friedman · filed 2017-06-07(a)(3)

“On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law” ... Here, the individual defendants failed to establish the plaintiff’s lack of standing as a matter of law.

CPLR 3211(a)(1) and (3) permit dismissal when documentary evidence establishes that the plaintiff lacks standing.

Glass v. Del Duca · filed 2017-06-21(a)(1), (a)(3)

The Supreme Court properly granted those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (1) and (3), in effect, to dismiss the first and second causes of action in the amended complaint for a declaratory judgment, as the defendants have a meritorious defense founded upon documentary evidence that the plaintiffs lack standing to bring these causes of action.

Section 3211(a)(3) permits a defendant to seek dismissal for lack of standing, and the moving defendant bears the initial burden of establishing that defect.

BAC Home Loans Servicing, LP v. Rychik · filed 2018-05-16(a)(3)

On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing.

CPLR 3211(a)(3) does not require dismissal merely because an incapacitated plaintiff was not appointed guardian ad litem before the action began.

Li v. Xiao · filed 2019-08-28(a)(3)

Contrary to the primary care defendants' contention, the mere fact that this action was commenced before the plaintiff moved pursuant to CPLR 1202 to be appointed guardian ad litem of her husband does not provide grounds for dismissal of the complaint pursuant to CPLR 3211(a)(3).

CPLR 3211(a)(3) does not require dismissal for lack of standing when plaintiffs are parties to the contracts they seek to enforce and incurred direct economic harm.

GSCP VI EdgeMarc Holdings, L.L.C. v. ETC Northeast Pipeline, LLC · filed 2021-03-09(a)(3)

The court also properly denied dismissal pursuant to CPLR 3211(a)(3) and correctly found that plaintiffs, parties to the Commitment Letters at issue, have standing to sue for a breach of their terms, and that they incurred direct economic harm ( see generally Society of Plastics Indus. v County of Suffolk , 77 NY2d 761, 772 [1991]).

A derivative plaintiff's pleaded ownership interest and waiver of membership requirements can suffice to defeat a motion to dismiss for lack of standing.

Sherman v. Zampella · filed 2023-03-21(a)(3)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about May 13, 2022, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (a)(3), and (a)(7), except as against Aniello Zampella personally, unanimously affirmed, with costs. Plaintiff pleaded facts sufficient to raise triable issues that he owned a stake in defendant Cottonwood Vending LLC and that the Operating Agreement's membership requirements were waived, giving Sherman standing to proceed with his derivative claims.

A defaulting defendant seeking dismissal under CPLR 3211(a)(3) for lack of standing must show a reasonable excuse for the default and a potentially meritorious defense.

Ditech Fin., LLC v. Connolly · filed 2024-08-21(a)(3)

Instead, where a defendant has defaulted, the defendant "must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action" ( Aurora Loan Servs., LLC v Movtady , 165 AD3d 1025, 1026). ... Here, the defendants failed to provide a reasonable excuse for their default. Accordingly, the Supreme Court properly denied the defendants' motion pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them.

CPLR 3211(a) allows a defendant to move to dismiss a cause of action only if that cause of action is asserted against that defendant.

374-76 Prospect Place Tenants Assn., Inc. v. City of New York · filed 2024-10-16(a)

The unjust enrichment cause of action was not asserted against the City. "A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant" ( Grocery Leasing Corp. v P & C Merrick Realty Co., LLC , 197 AD3d 628, 628; see CPLR 3211[a]). Accordingly, the City was unable to seek dismissal of that cause of action ( see Municipal Serv. Real Estate Co. v. D. B. & M. Holding Corp. , 257 NY 423, 428-429; Grocery Leasing Corp. v P & C Merrick Realty Co., LLC , 197 AD3d at 628).

CPLR 3211 permits a party to move to dismiss a claim asserted against that party, but not the party’s own claim.

Farkas v. Farkas · filed 1965-07-15

Obviously, a party cannot move to dismiss his own pleading. Such a motion lies only with an adverse party.

A named party to a proceeding may move to dismiss under CPLR 3211(a), even when that party’s authority to act on behalf of another entity is disputed.

Connolly v. Chenot · filed 2000-08-24(a)

Assuming, without deciding, that Wade, as an individual Commissioner, could not unilaterally undertake “official action” on behalf of the Rensselaer County Board of Elections (see generally, Gagliardo v Colascione, 153 AD2d 710, lv denied 74 NY2d 609), he nonetheless was entitled, as a named party to this proceeding, to bring the instant motion to dismiss (see, CPLR 3211 [a]).

CPLR 3211 imposes no 120-day deadline for a motion to dismiss.

Santana v. City of New York · filed 2004-12-06

There is no such deadline, however, for a motion to dismiss pursuant to CPLR 3211.

Section 3211 permits a named defendant to bring a motion to dismiss the action.

Board of Directors of Hill v. Cappello · filed 2007-11-21

As to Mr. Cappello, plaintiff named him as a party in this suit, and so he had the right to bring a motion to dismiss the action (see CPLR 3211; UJCA 1001).

A nonparty to an action cannot move to dismiss it under CPLR 3211 on the ground that the plaintiff lacked standing.

U.S. Bank National Ass'n v. Patterson · filed 2013-01-23

Since Noel Patterson was not a party to the foreclosure action, he was not entitled to move to dismiss the action on the ground that the plaintiff lacked standing to commence the action (see CPLR 3211).

Section 3211(a)(8) allows a defendant to raise lack of personal jurisdiction as a defense; a plaintiff cannot use that defense to dismiss her own action.

J.A.P. v. A.J.P. · filed 2017-02-02(a)(8)

The court also holds that the jurisdictional defense that the plaintiff seeks to assert to her advantage is not held by the plaintiff. The defense rests solely with the defendant, who is the designated beneficiary of any dismissal under CPLR 306-b. He alone has the option to dismiss the complaint under the affirmative defense set forth in CPLR 3211 (a) (8).

Under CPLR 3211(a)(8), a challenge to personal jurisdiction based on improper service is personal to the allegedly served party, who alone may raise it.

Rhoe v. Reid · filed 2018-11-21(a)(8) and (10)

Reid never cross-moved for such relief ( see CPLR 3211[a][8]), and Rhoe lacked standing to challenge whether Reid was properly served with process, since such a claim is personal in nature and may only be raised by the party allegedly improperly served ( see Wells Fargo Bank, N.A. v Bachmann , 145 AD3d 712, 714; Matter of Rhoades v Westchester County Bd. of Elections , 115 AD3d 958, 960; Wells Fargo Bank, N.A. v Bowie , 89 AD3d 931, 932; NYCTL 1996-1 Trust v King , 13 AD3d 429, 430; Home Sav. of Am. v Gkanios , 233 AD2d 422, 423). Accordingly, those branches of Rhoe's cross motion which were pursuant to CPLR 3211(a)(8) and (10) to dismiss the complaint in the foreclosure action should have been denied.

CPLR 3211(a) permits a defendant to seek dismissal only of a cause of action asserted against that defendant.

Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC · filed 2021-08-18(a)

A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant ( see CPLR 3211[a]).

Section 3211 permits a court to entertain a timely served pre-answer motion to dismiss.

Ruotolo v. Mae · filed 2015-04-16

Preliminarily, we note that defendants' pre-answer motions to dismiss were both timely served and, therefore, properly entertained by Supreme Court.

Section 3211(e) can bar a party from asserting a defense after a prolonged, unexplained delay.

Edenwald Contracting Co. v. City of New York · filed 1982-08-26(e)

Moreover, we are of the opinion that the city, by its failure to assert the waivers for five years after the service of the note of issue, is guilty of laches and should not now be allowed to assert what it has already waived.

A post-answer motion under § 3211(a)(8) can raise lack of personal jurisdiction or improper service, even though a post-answer limitations motion under § 3211(a)(5) would be barred.

Davenport v. Lumibao · filed 2026-03-02(a)(8)

Hence, there is no prohibition on IWCNJ’s submission of a post-answer CPLR 3211(a)(8) motion to dismiss the amended complaint against it for lack of in personam longarm jurisdiction or improper services of process, as there is would be on a post-answer CPLR 3211(a)(5) motion based on the expiration of the applicable statute of limitations.

Section 3211(a) confines a pre-answer motion to dismiss to legal defenses; the court accepts the petition’s factual allegations as true.

People v. Yellowstone Capital LLC · filed 2026-03-04(a)

At this juncture, only the objections in law will be considered since pre answer motions to dismiss should not involve a contest of the factual assertions of the claims and instead should focus solely on legal defenses as contemplated in CPLR § 3211(a) (see Garcia v. Rhea, 85 A.D.3d 549, 924 N.Y.S.2d 790 [1st Dept 2011]; and also In Re Bernstein Family, Ltd. Partnership, 66 A.D.3d 1, 883 N.Y.S.2d 201 [1st Dept 2009]).

Section 3211(e) makes a motion to dismiss under subdivision (a)(1) untimely and waived when filed after the time to respond to an amended complaint.

Ghous v. T-Mobile USA, Inc. · filed 2025-09-25(e)

In accordance with CPLR 3211 (e) the branch of the moving defendant's motion seeking dismissal of the amended verified complaint pursuant to CPLR 3211 (a) (1) is untimely and waived.

A defendant generally waives statute of limitations and fraud defenses by failing to raise them in a timely CPLR 3211(a) motion or in the answer.

Wilmington Sav. Fund Socy., FSB v. Mendez · filed 2025-07-30(e)

Here, the defendant did not raise the statute of limitations or fraud in a timely motion pursuant to CPLR 3211(a) or in her answer and, thus, waived those defenses ( see Housing Trust Fund Corp. v Nugent-Nobles , 235 AD3d 854; Globe Trade Capital, LLC v Hoey , 199 AD3d 764, 768-769).

Section 3211(e) permits a defendant to move to dismiss for lack of personal jurisdiction within 60 days after serving its answer.

Aideyan v. Mount Vernon City Sch. Dist. · filed 2025-06-25(e)

This Court notes that the defendant properly moved to dismiss the complaint for lack of personal jurisdiction within 60 days of serving its answer ( see CPLR 3211[e]; see also Deutsche Bank Natl. Trust Co. v Acevedo , 157 AD3d 859).

A motion to dismiss for failure to state a claim may be made at any time.

Stone v. Dim Sum Palace, Inc. · filed 2025-05-28(a)(7)

A CPLR 3211 (a)(7) motion may be made at any time.

Section 3211(e) makes a motion to dismiss under subsection (a)(1) untimely if made after the defendant serves an answer.

I-Fix-Screens-Com, Inc. v. Ibrahem · filed 2025-05-21(e)

The Supreme Court also properly denied dismissal of the cause of action to recover damages for breach of contract insofar as asserted against Chaudri pursuant to CPLR 3211(a)(1), as that branch of her motion which was to dismiss that cause of action insofar as asserted against her on that ground was untimely, having been made after she served her answer ( see id. § 3211[e]; City of New York v Shahid , 192 AD3d 754, 755).

Standing and timeliness defenses are waived if they are not raised in the answer or a motion to dismiss.

Matter of Kshatriya v. Office of Chief Med. Examiner of N.Y. City · filed 2025-05-13(e)

As an initial matter, respondents waived their defenses based on standing and timeliness by failing to assert them in the answer or a motion to dismiss ( see CPLR 3211[a][3], [a][5], [e]; Matter of Prudco Realty Corp. v Palermo , 60 NY2d 656, 657 [1983]; Matter of Astacio v Bratton , 146 AD3d 613, 614 [1st Dept 2017]).

A CPLR 3211 motion is not untimely, and its defenses are not waived, merely because earlier dismissal motions were made in federal court rather than in state court under the CPLR.

Flaherty v. Dixon · filed 2025-05-01

Finally, the Court does not consider the Defendants' motion untimely, nor were any defenses under the CPLR waived. The prior motions to dismiss were made in Federal Court, not in State Court under the CPLR.

CPLR 3211(e) waives a capacity-to-sue defense when the defendant fails to raise it in the answer.

Wells Fargo Bank, N.A. v. Spatafore · filed 2024-10-16(e)

Although the court should not have determined that this branch of the cross-motion was barred by the "single motion rule" of CPLR 3211(e) ( see Newlands Asset Holding Trust v Vasquez , 218 AD3d 786, 787), the defendants waived the defense they asserted—that the plaintiff lacked the capacity to sue in New York—by failing to raise it in their answer ( see CPLR 3211[e]; JP Morgan Chase Bank, N.A. v Butler , 129 AD3d 777, 780).

CPLR 3211 (e) permits a statute of limitations defense in a late answer when the court grants leave to serve that answer.

Deutsche Bank Natl. Trust Co. v. Deluca · filed 2024-02-29(e)

CPLR 3211 (e) only requires, however, that such a defense be raised in a "motion [to dismiss] or in the responsive pleading." If a court grants a tardy defendant leave to serve a late answer, in other words, the fact that the answer is late does not, by itself, prevent a statute of limitations defense from being asserted in it ( see Capital One N.A. v Ezkor , 209 AD3d 823, 825 [2d Dept 2022]; see also Endicott Johnson Corp. v Konik Indus. , 249 AD2d 744, 744 [3d Dept 1998]).

A defense waived under § 3211(e) may be raised in an amended answer with court leave if the delay causes no prejudice or surprise.

1691 Fulton Ave. Assoc., L.P. v. Washington · filed 2024-02-07(e)

“it has been repeatedly held that defenses waived under CPLR § 3211 (e) can nevertheless be interposed, with court leave, in an amended answer, provided the amendment does not cause the plaintiff ‘prejudice or surprise resulting directly from the delay.’”

CPLR 3211(e) allows a defendant to waive a time-bar defense by failing to raise it in an answer or timely motion to dismiss.

St. Surin v. New York Times Co. · filed 2024-01-26(e)

A defendant may waive the affirmative defense that an action is time barred by simply not raising it in an answer or by not making a timely motion to d~smiss the complaint on that basis (see CPLR 321 l(e)).

A defendant that omits lack of standing from its answer may not raise that defense in a later motion.

McPeek v. DNY2 153 Norfolk St. LLC · filed 2023-12-21(e)

The defendant also moves to dismiss the complaint on the ground, in effect, that the plaintiff lacks standing to sue (CPLR 3211[a][3]), as she has suffered no injury. ... The court notes that the defendant failed to include the defense of lack of standing in its answer and it therefore may not assert that ground in this motion.

A failure-to-state-a-claim defense may be asserted at any time, even if it was not pleaded.

Chelsea 8th Ave. LLC v. Chelseamilk LLC · filed 2023-10-24(e)

However, the motion court did not need to dismiss the second affirmative defense of failure to state a claim because that defense may be asserted at any time, even if not pleaded (CPLR 3211 [e]; San-Dar Assoc. v Fried , 151 AD3d 545, 545-46 [1st Dept 2017]).

Section 3211(e) treats a collateral estoppel defense as waived when it is not pleaded in the reply to counterclaims.

Gamez v. Lopez · filed 2023-10-18(e)

Although Gamez argues that Lopez is collaterally estopped by the order entered November 22, 2017, from arguing that Gamez made Lopez's performance under the settlement agreement impossible, Gamez waived the affirmative defense of collateral estoppel because he did not plead it in his reply to the counterclaims ( see CPLR 3211[a][5], [e]; JPMorgan Chase Bank, N.A. v Garcete , 203 AD3d 1149, 1151; Lennon v 56th & Park [NY] Owner, LLC , 199 AD3d 64, 70).

A CPLR 3211(a) motion made after the time to appear or answer has expired may be denied as untimely.

Federal Natl. Mtge. Assn. v. Grossman · filed 2022-05-11(a)

Insofar as the defendants' motion pursuant to CPLR 3211(a) was made after the time to appear or answer had expired, the remaining grounds for dismissal were untimely and properly denied ( see Rosenzweig v Gubner , 194 AD3d 1086, 1089-1090).

An exception to CPLR 3211(e)'s waiver rules does not allow a defendant in default to raise a nonjurisdictional defense without first addressing the default and obtaining leave to answer.

Aurora Loan Servs., LLC v. Jemal · filed 2022-05-04(e)

Further, where the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she "failed to appear" within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default and obtaining leave to serve a late answer ( see HSBC Bank USA, N.A. v Diallo , 190 AD3d 959, 960; Deutsche Bank Natl. Trust Co. v Hall , 185 AD3d 1006, 1011). This is true regardless of whether the nonjurisdictional defense is exempt from the waiver provisions of CPLR 3211(e) ( see HSBC Bank USA, N.A. v Diallo , 190 AD3d at 960; Deutsche Bank Natl. Trust Co. v Hall , 185 AD3d at 1011; cf. RPAPL 1302-a).

CPLR 3211(e) does not bar amending an answer to assert a defense of release.

Dolcimascolo v. 701 7th Prop. Owner, LLC · filed 2022-05-03(e)

Contrary to plaintiff's contention, CPLR 3211(e) does not bar amendment to the answer to assert a defense of release ( see generally GMAC Mtge., LLC v Coombs , 191 AD3d 37, 42 [2d Dept 2020]; Armstrong v Peat, Marwick, Mitchell & Co. , 150 AD2d 189, 190 [1st Dept 1989]).

A party forfeits an objection that a CPLR 3211 motion was made after issue was joined by failing to raise its untimeliness in the trial court or on appeal.

Pavlova v. Metlife Auto & Home · filed 2020-08-28(e)

Initially, we note that defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) was made after issue had been joined. Generally, such a motion must be made "before service of the responsive pleading is required" (CPLR 3211 [e]), although "[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a [*2]motion for summary judgment" (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff failed to argue in the Civil Court or on appeal that the motion was improper as untimely.

Section 3211(e) does not waive a res judicata defense omitted from an answer when the omission did not take the plaintiff by surprise.

Milton v. Subraj · filed 2020-06-05(e)

Moreover, a waiver of a res judicata defense ( see CPLR 3211 [e]) will not result where a defendant's failure to assert that defense in its answer did not take the plaintiff by surprise ( see Atlantic Chiropractic, P.C. , 62 Misc 3d 145[A], 2019 NY Slip Op 50173[U]; Metro Health Prods., Inc. , 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U]; Renelique , 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; see also Olean Urban Renewal Agency v Herman , 101 AD2d 712, 713 [1984]; Rogoff v San Juan Racing Assn. , 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]).

A defendant waives res judicata and collateral estoppel defenses by failing to raise them in a pre-answer motion to dismiss or as affirmative defenses in the answer.

Santana v. Fernandez · filed 2020-06-17(e)

To the extent that the defendant argues, alternatively, that the first cause of action should have been dismissed on the basis of res judicata or collateral estoppel in light of a prior DHCR proceeding concerning the subject apartment, the defendant waived that defense by failing to raise it in a pre-answer motion to dismiss or as an affirmative defense in her answer ( see CPLR 3211[e]; Bonanni v Horizons Invs. Corp. , 179 AD3d 995, 1001).

A defendant waives a res judicata or collateral estoppel defense by failing to raise it in a pre-answer motion to dismiss or as an affirmative defense in the answer.

Onate v. Fernandez · filed 2020-06-17(e)

To the extent that the defendant argues, alternatively, that the first cause of action should have been dismissed on the basis of res judicata or collateral estoppel in light of a prior DHCR proceeding concerning the subject apartment, the defendant waived that defense by failing to raise it in a pre-answer motion to dismiss or as an affirmative defense in her answer ( see CPLR 3211[e]; Bonanni v Horizons Invs. Corp. , 179 AD3d 995, 1001).

A defendant waives a standing objection by failing to raise it in a pre-answer motion to dismiss.

Estates NY Real Estate Servs. LLC v. City of New York · filed 2020-05-28(e)

To the extent defendants argue that plaintiff lacks standing to seek an order declaring the voucher program to be a violation of Social Services Law § 143-c and the Urstadt Law, they waived the argument by failing to raise it in their pre-answer motion to dismiss (CPLR 3211[a], [e]; Matter of Fossella v Dinkins , 66 NY2d 162, 167 [1985]).

A CPLR 3211 motion made after the time to appear has expired is untimely when the defendant neither seeks relief from default nor shows a reasonable excuse for it.

Oteri v. Oteri-Harkins · filed 2020-05-27(e)

After the defendants' time to appear in the action elapsed ( see CPLR 320[a]; 3211[e]), the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. ... We agree with the Supreme Court's determination to deny the defendants' motion. The motion was untimely made, and the defendants did not seek relief from their default or demonstrate a reasonable excuse for their default ( see Yi Zhao v Liu , 136 AD3d 1025, 1026; U.S. Bank N.A. v Gonzalez , 99 AD3d 694, 694-695; Holubar v Holubar , 89 AD3d 802).

A res judicata defense is waived if it is not raised in an answer or a motion to dismiss.

Bonanni v. Horizons Invs. Corp. · filed 2020-01-29(e)

However, this defense was waived, since the appellants failed to raise the defense of res judicata in their amended answer, which was filed after the making of the subject stipulation of discontinuance, or in a motion to dismiss ( see CPLR 3211[a][5]; [e]).

CPLR 3211(e) makes a motion to dismiss untimely when it is filed after the answer and the asserted defense was not raised in that answer.

OneWest Bank N.A. v. Rey · filed 2019-11-27(e)

Here, the defendant moved to dismiss the complaint approximately 16 [*2]months after he interposed his answer, and he did not raise the plaintiff's alleged failure to comply with section 255(d) of the National Housing Act and 24 CFR 206.41 in his answer. Therefore, the motion was untimely pursuant to CPLR 3211(e).

CPLR 3211(e) requires an affirmative defense to be raised in a responsive pleading or by motion before the responsive pleading is submitted.

352 Legion Funding Assoc. v. 348 Riverdale, LLC · filed 2018-08-08(e)

The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading ( see CPLR 3211[e]; Deutsche Bank Trust Co. Ams. v Cox , 110 AD3d 760, 762; Aurora Loan Servs. LLC v Dimura , 104 AD3d 796, 797; Horst v Brown , 72 AD3d 434, 436).

Section 3211(a)(5) permits dismissal based on a statute of limitations defense, and section 3211(e) requires that defense to be raised in an answer or timely pre-answer motion.

21st Mtge. Corp. v. Palazzotto · filed 2018-09-19(a)(5), (e)

Palazzotto waived a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss ( see CPLR 3211[a][5]; [e]; MidFirst Bank v Ajala , 146 AD3d 875; South Point, Inc. v Rana , 139 AD3d 935, 935-936; Ferri v Ferri , 71 AD3d 949, 950).

Section 3211(e) waives a defense based on lack of capacity or standing if the defendant fails to raise it in the answer or a pre-answer motion to dismiss.

Perine International Inc. v. Bedford Clothiers, Inc. · filed 2016-10-11(e)

Defendants waived any defense based on a lack of capacity or standing to sue by failing to assert it in the answer or a pre-answer motion to dismiss (CPLR 3211 [e], [a] [3]; see also Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-281 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007]).

Section 3211(e) limits the time to move to dismiss, and an unsupported claim that the plaintiffs caused the delay does not excuse a late motion.

Certain Underwriters at Lloyd's, London v. AT&T, Corp. · filed 2016-09-29(e)

AEIA’s motion to dismiss was filed well beyond the statutory time period (CPLR 3211 [e]; 3012 [a]), and the record does not support AEIA’s contention that the delay was due to plaintiffs’ actions.

A defendant who fails to timely answer or make a CPLR 3211 pre-answer motion waives a standing defense unless the time to respond is extended.

Nationstar Mortgage, LLC v. Avella · filed 2016-08-17

Since the defendant did not timely answer the complaint or timely make a pre-answer motion to dismiss the complaint, she waived the defense of lack of standing ... Prior to cross-moving, inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing, the defendant did not seek an extension of time to answer (see CPLR 3012 [d]), or request an extension of time within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint.

A defendant who does not timely make a pre-answer motion to dismiss for lack of standing waives that defense unless the time to move is extended.

Nationstar Mtge., LLC v. Avella · filed 2016-08-17

Since the defendant did not timely answer the complaint or timely make a pre-answer motion to dismiss the complaint, she waived the defense of lack of standing ( see U.S. Bank N.A. v Gulley, 137 AD3d 1008, 1009; FCDB FF1 2008-1 Trust v Videjus, 131 AD3d 1004, 1004; Southstar III, LLC v Enttienne, 120 AD3d 1332, 1333; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244). Prior to cross-moving, inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing, the defendant did not seek an extension of time to answer ( see CPLR 3012[d]), or request an extension of time within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint.

A defendant waives a standing defense by failing to raise it in the answer or a pre-answer motion to dismiss.

Bank of New York Trust Co., N.A. v. Chiejina · filed 2016-08-17(e)

Since the homeowner did not raise the affirmative defense of standing in his answer (see CPLR 3018 [b]), or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [a]), he waived that issue (see CPLR 3211 [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167 [1985]; One W. Bank, FSB v Vanderhorst, 131 AD3d 1028, 1028 [2015]; Robinson v Plaro Estates, Inc., 119 AD3d 542, 544 [2014]).

Section 3211(e) treats a standing defense as waived when a defendant raises it in neither an answer nor a pre-answer motion to dismiss.

Bank of N.Y. Trust Co., N.A. v. Chiejina · filed 2016-08-17(e)

Since the homeowner did not raise the affirmative defense of standing in his answer ( see CPLR 3018[b]), or in a pre-answer motion to dismiss the complaint ( see CPLR 3211[a]), he waived that issue ( see CPLR 3211[e]; Fossella v Dinkins , 66 NY2d 162, 167; One W. Bank, FSB v Vanderhorst , 131 AD3d 1028, 1028; Robinson v Plaro Estates, Inc ., 119 AD3d 542, 544).

CPLR 3211(e) does not waive unpleaded collateral estoppel and res judicata defenses when the failure to plead them does not surprise the plaintiff.

Metro Health Prods., Inc. v. Nationwide Ins. · filed 2016-07-13(e)

While plaintiff contended in the Civil Court that Nationwide had failed to move to amend its answer, the answer may be deemed amended to include the affirmative defenses of collateral estoppel and res judicata ( see Barrett v Kasco Constr. Co. , 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]), and a waiver of such defenses ( see CPLR 3211 [e]) will not result where, as here, the defendant's failure to assert the defenses in its answer did not take the plaintiff by surprise ( see Renelique , 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; see e.g. Olean Urban Renewal Agency v Herman , 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn. , 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]).

A pre-answer motion to dismiss under CPLR 3211(a)(7) is untimely when made after the time to appear or answer has expired.

Ultimate One Distributing Corp. v. 2900 Stillwell Avenue, LLC · filed 2016-06-22(a)(7)

Since the defendant’s pre-answer motion to dismiss was made after the time to appear or answer had expired, the Supreme Court should have denied the defendant’s motion to dismiss as untimely (see Wenz v Smith, 100 AD2d 585, 586 [1984]).

A defendant who brings a late pre-answer motion under CPLR 3211(a) without seeking an extension or showing good cause waives a lack-of-standing defense.

Chase Home Finance, LLC v. Garcia · filed 2016-06-08(a)

Prior to moving, inter alia, pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked standing, the defendants did not seek an extension of time to answer or appear in this action (see CPLR 3012 [d]), or request an extension of time within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them. Further, they did not attempt to show good cause for their delay, or even address the timeliness of their motion (see CPLR 2004). Therefore, they waived the defense of lack of standing.

CPLR 3211(e) treats an objection to improper service of a petition as waived when the respondent does not move to dismiss on that ground.

Matter of Global Liberty Ins. Co. v. Professional Chiropractic Care, P.C. · filed 2016-05-31(e)

Respondent waived its objections regarding improper service of the petition, since it never moved to dismiss the petition on those grounds (see CPLR 3211 [e]; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793, 796 [1st Dept 2005]; Matter of Resnick v Town of Canaan, 38 AD3d 949, 951 [3d Dept 2007]).

Under CPLR 3211(e), a defendant who shows a reasonable excuse for default and is permitted to answer has not waived a defense based on standing.

Wells Fargo Bank, N.A. v. Jones · filed 2016-05-17(e)

Here, since defendant sought in his cross motion to vacate the default judgment and interpose an answer, if he shows that he has a reasonable excuse for default, he will not have waived a defense based on standing (see Wells Fargo Bank, N.A. v Riley, 23 Misc 3d 1107[A], 2009 Slip Op 50616[U] [Sup Ct, Westchester County 2009] [defendants who never appeared and whose default was vacated had not waived standing defense]; Citigroup Global Mkts. Realty Corp. v Randolph Bowling, 25 Misc 3d 1244[A], 2009 NY Slip Op 52567[U] [Sup Ct, Kings County 2009] [where defendant was not personally served and had not appeared, standing defense not waived]; see also U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724 [2d Dept 2011] [“defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court”]).

A party waives a lack-of-standing defense by failing to raise it in a pre-answer motion to dismiss or in its answer.

Plainview-Old Bethpage Congress of Teachers v. New York State Health Insurance Plan · filed 2016-06-09(a)(3), (e)

Contrary to the state respondents’ contention, they waived their argument that petitioners lack standing to maintain this combined action/proceeding, inasmuch as they failed to raise this affirmative defense in either a pre-answer motion to dismiss or their answer (see CPLR 3211 [a] [3]; [e]; Marcon Affiliates, Inc. v Ventra, 112 AD3d 1095, 1095-1096 [2013]; Kruger v State Farm Mut. Auto. Ins. Co., 79 AD3d 1519, 1520 [2010]; Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092-1093 [2008]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243 [2007]; Matter of Leonard H., 278 AD2d 762, 763-764 [2000], lv denied 96 NY2d 709 [2001]; see also Lacks v Lacks, 41 NY2d 71, 74-75 [1976]).

A motion under CPLR 3211(a)(3) is untimely when made after the time to answer has expired.

Deutsche Bank National Trust Co. v. Ramharrack · filed 2016-05-11(e)

The branch of the cross motion which was pursuant to CPLR 3211 (a) (3) was untimely, since it was made after the time to file an answer had expired (see CPLR 3211 [e]; Archer v Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 11 [2014]; Lema v New York Cent. Mut. Fire Ins. Co., 112 AD3d 891, 892 [2013]).

Section 3211(e) requires res judicata and collateral estoppel defenses to be raised before service of the responsive pleading or in that pleading; a stricken answer does not preserve them.

Lin v. Lin · filed 2016-03-24(e)

Civil Practice Law and Rules § 3211 clearly states that the defenses of res judicata and collateral estoppel are deemed waived unless raised by a motion before service of the responsive pleading or by the responsive pleading (CPLR 3211 [e]; 3211 [a] [5]; see also Mayers v D’Agostino, 58 NY2d 696 [1982]). However, since defendant’s answer — which included the affirmative defenses of res judicata and collateral estoppel — was stricken, defendant cannot now make an end run around his stricken answer by attempting to raise those defenses in a manner blatantly contrary to statutory directives. Accordingly, the court denies the branch of the motion seeking dismissal on the principles of res judicata and collateral estoppel.

Section 3211(e) treats an objection to a plaintiff's ability to recover wrongful death damages as waived when it is first raised on appeal.

Oates v. New York City Transit Authority · filed 2016-04-12(e)

Further, the Transit Authority waived its argument that decedent's mother could not recover damages for decedent's wrongful death, since it failed to raise the argument at any time before this appeal ( see CPLR 3211[a][3]; [e]; see also San Filippo v New York City Tr. Auth. , 105 AD3d 665, 667 [1st Dept 2013]).

A defense waived under CPLR 3211(e) may still be added by amending the answer with leave of court if the amendment meets the applicable requirements.

Dixon v. Chang · filed 2016-03-16(e)

Even when a defense is waived under CPLR 3211 (e), “it can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025 (b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit” (Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1187 [2015]; see CPLR 3025 [b]; Onewest, F.S.B. v Goddard, 131 AD3d 1028, 1029 [2015]; see also Tirpack v 125 N. 10, LLC, 130 AD3d 917, 919 [2015]; Stein v Doukas, 128 AD3d 803, 804 [2015]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

A CPLR 3211 motion may be denied as untimely when the defendant has defaulted by failing to answer and neither seeks relief from the default nor shows a reasonable excuse.

Zhao v. Liu · filed 2016-02-24(e)

VisionChina did not seek relief from its default or make any showing of a reasonable excuse for its default. Under such circumstances, the Supreme Court properly declined to excuse VisionChina’s default and denied the motion as untimely (see CPLR 3211 [e]; Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d 624 [2010]).

A defendant waives a lack-of-standing defense under CPLR 3211(e) by failing to raise it in the answer or a pre-answer motion to dismiss.

HSBC Bank USA, NA v. Halls · filed 2016-02-10(e)

An argument that a plaintiff lacks standing, if not asserted in the answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211 (e) (see U.S. Bank, N.A. v Sharif, 89 AD3d at 723; JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 84 AD3d 1173, 1173 [2011]).

Section 3211 bars defendants from seeking dismissal on known claim-splitting and collateral-estoppel grounds that they failed to raise in an earlier motion to dismiss.

Melcher v. Greenberg Traurig LLP · filed 2016-01-19(a)(5); (e)

But because they failed to raise those defenses on their motion to dismiss, defendants cannot now be heard to say that the trial court should have dismissed this action under those defenses (CPLR 3211 [a] [5]; [e]).

A standing defense is waived if it is not raised in a pre-answer motion to dismiss or in the answer.

Plainview-Old Bethpage Congress of Teachers v. New York State Health Insurance Plan · filed 2015-11-25(a)(3), (e)

Contrary to the State respondents’ contention, they waived their argument that petitioners lack standing to maintain this combined action/proceeding, inasmuch as they failed to raise this affirmative defense in either a pre-answer motion to dismiss or their answer (see CPLR 3211 [a] [3]; [e]; ... 41 NY2d 71, 74-75 [1976]).

Section 3211(e) waives a standing defense if the defendant fails to raise it in the answer.

WELLS FARGO BANK, N.A. v. DEERING, CHERYL A. · filed 2015-12-23(e)

As a preliminary matter, we note that defendants waived the defense of standing by failing to raise it in their answer to the complaint (see CPLR 3211 [e]; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780; Wendover Fin. Servs. v Ridgeway, 93 AD3d 1156, 1158).

Section 3211(e) waives a defendant’s challenge to a foreclosure plaintiff’s standing if the defendant fails to raise it in its answer or a pre-answer motion to dismiss.

Bank of New York Mellon Trust Co. v. Ungar Family Realty Corp. · filed 2013-11-13(e)

The Supreme Court properly rejected this claim because UFRC waived it by failing to challenge the plaintiffs standing in its answer or in a pre-answer motion to dismiss (see CPLR 3211 [e]; US Bank N.A. v Denaro, 98 AD3d 964, 964-965 [2012]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]).

Under CPLR 3211(e), a defendant may preserve a lack-of-capacity defense by moving to dismiss without formally amending the answer.

Ladson v. Fessel · filed 2011-06-28(e)

Contrary to the plaintiffs contention, in accordance with the terms of CPLR 3211 (e), the defendant did not waive the defense of the plaintiffs lack of capacity to sue (see CPLR 3211 [a] [3]). “The fact that [the defendant] failed to formally amend [his] answer and chose to move to dismiss instead should make no difference in this case” (Bennett v First Natl. Bank of Glens Falls, 146 AD2d 882, 885 [1989]).

A party waives a standing defense under CPLR 3211(e) by failing to raise it in a preanswer motion to dismiss or as an affirmative defense in the answer.

JP Morgan Chase Bank v. Strands Hair Studio · filed 2011-05-24(e)

Thus, she waived her right to raise the argument at all subsequent phases of the litigation pursuant to CPLR 3211 (e) (see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818 [2010], cert denied 562 US —, 131 S Ct 648 [2010]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625 [2009]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243 [2007]; Gilman v Abagnale, 235 AD2d 989, 990 [1997]).

A res judicata ground for dismissal under CPLR 3211(a)(5) must be raised with proper notice; a ground raised only after the initial motion papers cannot support dismissal.

Law Offices of D'Amico & Associates, PLLC v. D'Elia · filed 2011-04-26(a)(5)

While plaintiff, in its initial moving papers, sought to dismiss defendant’s counterclaims pursuant to CPLR 3211 (a) (1) and (7), it did not, in those papers, seek dismissal based upon res judicata pursuant to CPLR 3211 (a) (5), and it implicitly sought dismissal on res judicata grounds, if at all, only by letter to the District Court. ... Accordingly, it was error for the District Court to dismiss defendant’s counterclaims on the alternative ground of res judicata implicitly raised by plaintiff.

Section 3211(e) does not waive a lack-of-privity objection when it was not timely pleaded.

Logan-Baldwin v. L.S.M. General Contractors, Inc. · filed 2011-01-05(e)

Privity is not a defense specifically enumerated under CPLR 3211 (e) as subject to waiver if not timely pleaded.

A defendant waives a lack-of-standing defense under CPLR 3211 by failing to raise it in a pre-answer motion or the answer.

Kruger v. State Farm Mutual Automobile Insurance · filed 2010-12-23(a)(3), (e)

Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was not raised in a pre-answer motion to dismiss or in defendant’s answer, it was waived and cannot now be advanced (see CPLR 3211 [a] [3]; [e]; McHale v Anthony, 70 AD3d 466, 467 [2010]; Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1087 [2007]).

A defense waived under CPLR 3211 (e) may be added to an answer by leave to amend if the delay causes no prejudice or surprise.

Ricchezza v. Metropolitan Transportation Authority · filed 2010-12-21(e)

Contrary to the plaintiffs contention, “defenses waived under CPLR 3211 (e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025 (b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay” (Endicott Johnson Corp. v Konik Indus., 249 AD2d 744, 744 [1998]; see Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723 [2010]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Nunez v Mousouras, 21 AD3d 355, 356 [2005]).

CPLR 3211(e) requires a defendant to raise lack of standing in an answer or timely pre-answer motion to avoid waiving the defense.

Deutsche Bank National Trust Co. v. Hussain · filed 2010-11-23(e)

Having failed to interpose an answer or file a timely pre-answer motion asserting the defense of lack of standing pursuant to CPLR 3211 (e), the defendant waived that defense (see Deutsche Bank Natl. Trust Co. v Young, 66 AD3d 819 [2009]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244 [2007]).

CPLR 3211(e) treats a standing defense as waived if the defendant fails to assert it in an answer or pre-answer motion.

Countrywide Home Loans Servicing, LP v. Albert · filed 2010-11-23(e)

The defendant waived any argument that the plaintiff lacked standing to commence this action. Having failed to interpose an answer or file a pre-answer motion which asserted the defense of standing, the defendant waived that defense pursuant to CPLR 3211 (e) (see HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-245 [2007]).

A defendant waives a standing defense by failing to raise it in a pre-answer motion to dismiss or in the answer.

Rossrock Fund II, L.P. v. Commack Investor Group, Inc. · filed 2010-11-16(e)

Commack waived its claim that Rossrock lacked standing to bring the instant foreclosure action by failing to make a pre-answer motion to dismiss the complaint on that ground or by asserting that defense in their answer ...).

A motion to dismiss for failure to join a necessary party is not limited to the period before a responsive pleading is due.

Park Avenue Bank v. Cong. & Yeshiva Ohel Yehoshea · filed 2010-08-02(e)

Although defendant’s cross motion to dismiss is grounded only in CPLR 3211 (a) (8) for lack of personal jurisdiction, and not in CPLR 3211 (a) (10) for the “absence of a person who should be a party,” a motion to dismiss on the latter ground is not limited to the “time before service of the responsive pleading is required” (see CPLR 3211 [e]).

A motion to dismiss under CPLR 3211(a) must be made before the defendant’s time to serve an answer or notice of appearance expires.

McGee v. Dunn · filed 2010-07-27(e)

However, the Supreme Court should not have granted the defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint as it was not made prior to the time by which the defendant was required to serve an answer or notice of appearance (see CPLR 320 [a]; 3211 [e]).

Section 3211(e) treats an unpleaded affirmative defense as waived, but the waiver may be retracted when the defense is raised on summary judgment without prejudicing or surprising the opposing party.

Strauss v. BMW Financial Services Vehicle Leasing · filed 2010-07-27(e)

The failure to plead an affirmative defense, whether one enumerated in the statute or one which would take the adverse party by surprise results in a waiver of said defense. (CPLR 3211 [e].) ... When a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pleaded affirmative defense.

CPLR 3211(e) waives a res judicata defense unless it is raised in the answer or in a motion made before the answer is required.

Paterno v. Carroll · filed 2010-07-27(e)

Paterno’s defense that the counterclaim was barred by the doctrine of res judicata was waived because he failed to assert it in his answer or in a motion made before service of the answer was required (see CPLR 3211 [e]; Mayers v D’Agostino, 58 NY2d 696, 698 [1982]).

CPLR 3211(e) makes a motion to dismiss untimely when it is brought years after responsive pleadings and waiver of affirmative defenses, with no extension of time granted.

Clinkscale v. Sampson · filed 2010-06-01(e)

The defendants’ motion, inter alia, to dismiss the complaint pursuant to CPLR 3211, was belatedly made almost five years after the service of responsive pleadings and the defendants’ waiver of affirmative defenses (see CPLR 3211 [e]). Since no extension of time to make the motion to dismiss was requested by the defendants or granted by the court (see CPLR 2004), and a money judgment in the action already had been entered, the motion should have been denied as untimely (see Bennett v Hucke, 64 AD3d 529 [2009]; Bowes v Healy, 40 AD3d 566 [2007]; Diaz v DiGiulio, 29 AD3d 623 [2006]; Continental Info. Sys. Corp. v Mutual Life Ins. Co. ofN.Y., 77 AD2d 316, 318 [1980]).

A defendant may make a timely CPLR 3211 motion to dismiss by notice of motion.

Khedouri v. Equinox · filed 2010-05-13

Defendant’s motion to dismiss plaintiff’s summons and complaint and purported supplemental summons and amended complaint was timely made by notice of motion pursuant to CPLR 3211 (see Kitkas v Windsor Place Corp., 49 AD3d 607 [2008]).

A defendant waives a statute of limitations defense by failing to raise it in a pre-answer motion to dismiss or in the answer.

Foti v. Noftsier · filed 2010-04-30(e)

With respect to the Noftsier defendants, they did not contend that the action was time-barred either in a pre-answer motion to dismiss the action or in their amended answer, and we therefore conclude that they waived that defense (see CPLR 3211 [a] [5]; [e]).

A lack-of-capacity defense is waived if omitted from the answer and a pre-answer motion, but may be added by amendment if the delay causes no prejudice or surprise.

Complete Management, Inc. v. Rubenstein · filed 2010-06-01(a)(3), (e)

Although the defendants waived this defense by failing to raise it in their answer or in a motion to dismiss made prior to answering (see CPLR 3211 [a] [3]; [e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574 [2003]; Harte v Richmond County Sav. Bank, 224 AD2d 585, 586 [1996]), “ ‘defenses waived under CPLR 3211 (e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025 (b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay’ ” (Nunez v Mousouras, 21 AD3d 355, 356 [2005], quoting Endicott Johnson Corp. v Konik Indus., 249 AD2d 744, 744 [1998]).

CPLR 3211(e) treats a personal jurisdiction objection as waived when it is first raised in a reply supporting a motion for reargument.

United Services Automobile Ass'n v. Kungel · filed 2010-04-15(e)

Respondent’s contention that the procedural irregularities here deprived the court of personal jurisdiction over him has been waived as he failed to raise this argument until he submitted his reply in support of his motion for reargument (see CPLR 3211 [e]; see e.g. Matter of Ballard v HSBC Bank USA, 6 NY3d 658, 664-665 [2006]).

A motion to dismiss under CPLR 3211(a)(5) is untimely if made after the responsive pleading was due.

Nowacki v. Becker · filed 2010-03-19(e)

We agree with plaintiff that defendant’s motion was untimely because it was not made “before service of the responsive pleading [was] required” (CPLR 3211 [e]; see Bennett v Hucke, 64 AD3d 529, 530 [2009]; Bowes v Healy, 40 AD3d 566 [2007]; Hanover Ins. Co. v Finnerty, 225 AD2d 1054, 1055 [1996]).

A defendant waives a lack-of-capacity defense by waiting years to raise it despite knowing its basis and failing to seek leave to amend its answer.

Lance International, Inc. v. First National City Bank · filed 2010-02-19(e)

Defendant’s “supplemental” motion for summary judgment dismissing the complaint, which Civil Court treated as a motion to dismiss under CPLR 3211, should have been denied. The record demonstrates that, at least as of June 1988, defendant knew that plaintiff had been dissolved for nonpayment of taxes by proclamation of the New York State Secretary of State, yet defendant failed to move for leave to amend its answer to assert a defense based on plaintiffs alleged lack of capacity to maintain this action. Instead, defendant first raised this defense approximately 20 years later in January 2009. Based on these undisputed facts, defendant waived any defense based on plaintiffs alleged lack of capacity (see City of New York v State of New York, 86 NY2d 286, 292 [1995]; Security Pac. Natl. Bank v Evans, 31 AD3d 278 [2006], appeal dismissed 8 NY3d 837 [2007]).

Section 3211(e) treats standing and improper-service claims as waived when they are not raised in an answer or a pre-answer motion to dismiss.

Wells Fargo Bank Minnesota, National Ass'n v. Perez · filed 2010-02-09(e)

The defendant waived her claims that the plaintiff lacked standing to bring the instant foreclosure action and that she ... was not properly served in the action by failing to raise those claims in her answer or in a pre-answer motion to dismiss (see Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625 [2009]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243 [2007]; see also CPLR 3211 [e]; Matter of Parkside Ltd. Liab. Co., 294 AD2d 582, 583 [2002]; Hatch v Tu Thi Tran, 170 AD2d 649, 650 [1991]).

A defendant who answers without objecting to personal jurisdiction or improper service cannot later raise that objection to defeat summary judgment.

Burstein v. Sullivan · filed 2010-02-05(e)

Nonetheless, assuming, arguendo, that this rule may apply to defenses waivable pursuant to CPLR 3211 (e) ... defendant should not have been allowed to raise an objection based upon improper service in these circumstances.