N.Y. C.P.L.R. § 3211

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

Fish King Enterprises v. Countrywide Insurance · filed 2011-10-04(a)(3), (e)

Countrywide did, however, waive its current standing defense by failing to either make a pre-answer motion to dismiss on that basis or assert such as an affirmative defense in its answer (see CPLR 3211 [a] [3); [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167 [1985]; Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Org., 80 AD3d 643, 651 [2011]).

Section 3211(e) waives a lack-of-standing defense if the defendant raises it in neither a pre-answer motion to dismiss nor the answer.

32nd Avenue, LLC v. Angelo Holding Corp. · filed 2011-10-25(e)

Initially, the appellants waived the defense of lack of standing (see CPLR 3211 [a] [3]) by failing to either make a pre-answer motion to dismiss the complaint on that ground or assert that defense in their respective answers (see CPLR 3211 [e]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2007]).

Section 3211(e) does not treat a defendant’s delay in moving to dismiss as a waiver of the statute of limitations defense when no action is pending against that defendant.

Baptiste v. Doe · filed 2011-11-01(e)

In the absence of an action pending against them, defendants’ own tardiness in moving to “dismiss” did not constitute a waiver of the statute of limitations defense (see CPLR 3211 [e]).

Section 3211(e) waives a documentary-evidence ground for dismissal when it is omitted from the answer and no motion is made before the answer is due.

Margolin v. IM Kapco, Inc. · filed 2011-11-01(e)

As the plaintiff correctly contends, the seller waived her right to move pursuant to CPLR 3211 (a) (1) to dismiss the complaint based upon documentary evidence, because this defense was not raised in her answer and the motion was not made before the answer was due (see CPLR 3211 [e]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241 [2007]).

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

U.S. Bank, National Ass'n v. Sharif · filed 2011-11-01(e)

However, 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 (Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723 [2010]; see Nunez v Mousouras, 21 AD3d 355, 356 [2005]; Aurora Loan Servs., LLC v Thomas, 70 AD3d 986, 987 [2010]).

Section 3211(e) waives a collateral estoppel defense omitted from both the answer and the original motion to dismiss.

Ofman v. Ginsberg · filed 2011-11-15(e)

Notably, he did not raise this objection or defense in either his answer or his original motion to dismiss the complaint (see CPLR 3211 [e]). Accordingly, the defense based on the doctrine of collateral estoppel was waived (id.).

Section 3211(e)'s waiver rule does not apply to someone who was never properly made a party to the action.

WENDOVER FINANCIAL SERVICES v. RIDGEWAY, JO-ANN · filed 2012-03-16(e)

Inasmuch as Ridgeway was never properly made a party to this action in any capacity, the waiver provisions of CPLR 3211 (e) are inapplicable to her.

CPLR 3211(e)’s waiver rule for failing to raise a defense in a responsive pleading or pre-answer motion does not apply to someone who was never properly made a party.

Wendover Financial Services v. Ridgeway · filed 2012-03-16(e)

Pursuant to CPLR 3211 (e), “a party” waives such a defense by failing to raise it in a responsive pleading or a pre-answer motion. Inasmuch as Ridgeway was never properly made a party to this action in any capacity, the waiver provisions of CPLR 3211 (e) are inapplicable to her.

A defendant’s default warrants denial of an untimely motion to dismiss under section 3211(e).

Nouveau Elevator Industries, Inc. v. Tracey Towers Housing Co. · filed 2012-05-15(e)

This default also warrants denial of defendants R.Y. Management Co., Inc. and Leon D. DeMatteis Construction Corp.’s untimely motion to dismiss (see CPLR 3211 [e]).

A defendant waives a standing objection by failing to appear or answer on time.

Wells Fargo Bank v. Edwards · filed 2012-05-22(a)(3); (e)

Contrary to defendant’s contention, the court did not err in determining that she waived the issue of standing by failing to timely appear or answer (see CPLR 3211 [a] [3]; [e]).

Section 3211(e) treats res judicata and collateral estoppel defenses as waived when omitted from a pre-answer motion to dismiss.

Kreamer v. Town of Oxford · filed 2012-06-07(e)

By filing a pre-answer motion that did not raise those defenses, defendants waived them (see CPLR 3211 [e]).

Section 3211(e) requires a motion to dismiss under subdivision (a)(4) to be made before service of the responsive pleading is required.

Born to Build LLC v. Saleh · filed 2012-06-07(e)

The branch of the motion seeking dismissal of the first, sixth, seventh, ninth and tenth causes of action pursuant to CPLR 3211 (a) (4) is untimely. CPLR 3211 (e) requires that a motion to dismiss pursuant to section (a) (4) be made “[a]t any time before service of the responsive pleading is required.” Here, 1141 Realty served the instant motion approximately one year after service of its answer, which itself was untimely served.

An objection under CPLR 3211(a)(3) to a plaintiff’s right to pursue claims identified in the complaint can be waived under subsection (e).

Santa v. Capitol Specialty Insurance · filed 2012-06-26(a)(3), (e)

Although the stipulation explicitly referenced a declaratory judgment action only with respect to the primary policy, plaintiffs’ complaint clearly referenced claims against both the primary and excess policies, and defendants thus waived any objection to a determination of coverage rights under both policies (see CPLR 3211 [a] [3]; [e]; Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 479 [2011], appeal dismissed 17 NY3d 922 [2011]).

Section 3211 permits defendants to raise documentary-evidence and payment defenses in their answer after an unsuccessful motion to dismiss.

Board of Directors of House Beautiful at Woodbury Homeowners Ass'n v. Godt · filed 2012-06-27(e), (f)

The defendants did not waive any defense founded upon documentary evidence or payment of the arrears and are free to raise those defenses in their answer to the complaint (see CPLR 3211 [e], [f]; Hertz Corp. v Luken, 126 AD2d 446, 448 [1987]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:71; Siegel, NY Prac § 274, at 471 [5th ed]).

CPLR 3211(e) waives a lack-of-standing defense unless the defendant raises it in the answer or a pre-answer motion to dismiss.

Citibank, N.A. v. Swiatkowski · filed 2012-08-08(e)

The defendants did not make a pre-answer motion to dismiss the complaint, and did not raise lack of standing as an affirmative defense in their answer. Therefore, they waived their right to raise it in support of their motion (see CPLR 3211 [e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]).

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

Citibank, N.A. v. Swiatkowski · filed 2012-08-08(e)

A defendant waives the defense of lack of standing unless it is raised in either the answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167 [1985]; Dougherty v City of Rye, 63 NY2d 989, 991 [1984]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).

CPLR 3211(e) waives a standing defense if the defendant fails to raise it in an answer, amended answer, or timely pre-answer motion to dismiss.

U.S. Bank National Ass'n v. Denaro · filed 2012-09-12(e)

... waived any defense based on the plaintiffs alleged lack of standing because they failed to interpose that defense in their answer or amended answer, or in a timely pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244 [2007]).

A motion to dismiss for lack of standing may be denied when the defendant delays raising that defense until after answering and summary judgment.

HSBC Bank USA v. Philistin · filed 2012-10-03(a)(3)

The defendant Gabriel Philistin (hereinafter the defendant) failed to assert, in his answer or in a pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a), the defense that the plaintiff lacked standing at the time it commenced the action (see CPLR 3211 [a] [3]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279-280 [2011]). ... For the same reasons, the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the complaint for lack of standing.

A CPLR 3211 motion to dismiss is untimely when made after the time to respond has expired without an extension.

U.S. Bank National Ass'n v. Gonzalez · filed 2012-10-03(e)

Accordingly, the Supreme Court should have denied, as untimely, that branch of Gonzalez’s motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him (see Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d 624, 625 [2010]).

CPLR 3211(e) allows an improper-service defense to be waived, so a court should not dismiss a complaint on that ground sua sponte.

Dupps v. Betancourt · filed 2012-10-17(e)

However, because improper service of the summons and complaint is a defense that may be waived (see CPLR 3211 [e]), the Supreme Court should not have, sua sponte, directed the dismissal of the complaint insofar as asserted against those defendants.

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

Tomarken v. State · filed 2012-11-01(e)

Respondents waived their argument that petitioners lack capacity to sue them, as this affirmative defense was not raised in the answers or a pre-answer motion to dismiss (see CPLR 3211 [a] [3]; [e]; Bicounty Brokerage Corp. v Burlington Ins. Co., 88 AD3d 833, 834 [2011]; Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280 [2006], appeal dismissed 8 NY3d 837 [2007]).

Section 3211’s waiver rule does not bar a timely appearing party from raising a failure to serve statutory foreclosure notices later in the action.

Citimortgage, Inc. v. Pembelton · filed 2013-02-05(e)

Although such defense implicates neither a lack of subject matter jurisdiction nor a lack of personal jurisdiction (see Pritchard v Curtis, 101 AD3d 1502, 1505 [2012], supra), it is not subject to waiver if it is not asserted in a pre-answer motion to dismiss or in an answer (see CPLR 3211 [a], [e]).

Section 3211(e) treats a statute of limitations defense as waived when it is omitted from the initial reply to counterclaims.

Aurora Loan Services, LLC v. Dimura · filed 2013-03-20(e)

The plaintiff waived its statute of limitations defense by failing to assert it as an affirmative defense in its initial reply to the appellants’ counterclaims (see CPLR 3211 [e]).

CPLR 3211(e) waives a standing defense if it is not raised in the answer or a timely pre-answer motion to dismiss.

Gabel v. Gabel · filed 2013-03-27(e)

Moreover, the defendants waived any defense based on Gabel Equipment’s alleged lack of standing because they failed to interpose that defense in their answer or in a timely pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; U.S. Bank N.A. v Denaro, 98 AD3d 964, 964-965 [2012]; 32nd Ave., LLC v Angelo Holding Corp., 88 AD3d 986, 987 [2011]).

Section 3211(e) gives the court discretion to extend the time to make a motion to dismiss.

Premier Staffing Services of New York, Inc. v. RDI Enterprises, Inc. · filed 2013-04-08(e)

Since the court has the discretion to extend the time pursuant to CPLR 3211 (e), the court does so. Denying the motion because of two days’ delay would cause an undue hardship.

A lack-of-standing defense is waived if it is not raised in the answer.

Ford v. New York State Racing & Wagering Board · filed 2013-06-06(e)

Inasmuch as respondent did not raise petitioners’ lack of standing with respect to this issue in its answer, that defense has been waived (see CPLR 3211 [a] [3]; [e]).

Section 3211(e)’s 60-day waiver provision did not bar a Court of Claims service objection raised 20 months after the answer.

ZOECKLER, SR., DAVID D. v. STATE OF NEW YORK · filed 2013-09-27(e)

Contrary to claimants’ contention, defendant’s motion to dismiss on the ground of improper service, made approximately 20 months after service of its answer, was not precluded by the 60-day waiver provision of CPLR 3211 (e).

Defenses waived under CPLR 3211(e) may be raised in an answer amended with leave of court if the amendment causes no prejudice or surprise from the delay and is not plainly without merit.

Deutsche Bank Trust Co. Americas v. Cox · filed 2013-10-09(e)

However, 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 and is not palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Aurora Loan Servs., LLC v Dimura, 104 AD3d 796, 797 [2013]; U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724 [2011]; Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723 [2010]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

CPLR 3211(e) waives a lack of standing defense omitted from the initial answer, but the defendant may seek leave to amend the answer to add it.

HSBC Bank v. Picarelli · filed 2013-10-30(e)

Although the defendants Maryann Picarelli and Margaret Rappold (hereinafter together the homeowner defendants) waived the defense of lack of standing by failing to assert it as an affirmative defense in their initial answer (see CPLR 3211 [e]), this defense can nevertheless be interposed 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 (see U.S. Bank, N.A. v Sharif, 89 AD3d at 724; Ricchezza v Metropolitan Transp. Auth., 79 AD3d 998 [2010]; Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723 [2010]; Nunez v Mousouras, 21 AD3d 355, 356 [2005]; Endicott Johnson Corp. v Konik Indus., 249 AD2d 744 [1998]).

CPLR 3211(e) waives a standing objection unless it is raised in the answer or a pre-answer motion to dismiss.

Ever Win, Inc. v. 1-10 Industry Associates · filed 2013-11-27(e)

The defendant’s right to challenge the plaintiffs standing to commence the action was waived by its failure to raise the issue in its answer or in a pre-answer motion to dismiss (see CPLR 3211 [e]; Citibank, N.A. v Swiatkowski, 98 AD3d 555 [2012]).

Under CPLR 3211(e), a motion to dismiss made after the time to answer has lapsed is untimely.

Lema v. New York Central Mutual Fire Insurance · filed 2013-12-26(e)

The defendant’s motion to dismiss the complaint in this action was untimely, since it was made after the time to file an answer had lapsed (see CPLR 3211 [e]; Bennett v Hucke, 64 AD3d 529, 530 [2009]; Moxson v United Airlines, 282 AD2d 725, 727 [2001]), and therefore should have been denied.

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

JP Morgan Mortgage Acquisition Corp. v. Hayles · filed 2014-01-29(e)

The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiffs standing in her answer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 990 [2010]; see also CPLR 3211 [e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]).

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

EMC Mortgage Corp. v. Gass · filed 2014-02-20(a)(3), (e)

Rather, she brought two untimely motions to dismiss based upon plaintiffs asserted lack of standing — an affirmative defense that defendant clearly waived by failing to raise it in an answer or a timely pre-answer motion to dismiss (see CPLR 3211 [a] [3]; [e]; ...).

Section 3211(e) waives a release defense unless it is raised in a CPLR 3211(a) motion or a responsive pleading.

Kocourek v. Booz Allen Hamilton Inc. · filed 2014-02-20(e)

Where applicable, CPLR 3211 (e) provides that a defense based on a ground set forth in CPLR 3211 (a) (5), i.e., release, is waived unless raised by way of a CPLR 3211 (a) motion or in a responsive pleading.

A motion to dismiss made after the time to answer has expired is untimely unless the court extends the time to move.

Archer v. Motor Vehicle Accident Indemnification Corp. · filed 2014-04-23(e)

MVAIC’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) was untimely, since it was made after the time to file an answer had expired (see CPLR 3211 [e]; Lema v New York Cent. Mut. Fire Ins. Co., 112 AD3d 891 [2013]), and no extension of time to make the motion was requested by MVAIC or granted by the court (see Clinkscale v Sampson, 74 AD3d 721, 722 [2010]; Bennett v Hucke, 64 AD3d 529, 530 [2009]).

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

Bank of New York Mellon Trust Co. v. McCall · filed 2014-04-30(a)(3); (e)

McCall waived her right to challenge the plaintiff’s standing by failing to raise it in her answer or in a pre-answer motion to dismiss (see CPLR 3211 [a] [3]; [e]; Citibank, N.A. v Herrera, 64 AD3d 536 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 240).

A defendant waives a lack of standing defense by failing to assert it in the answer.

Provident Bay Road, LLC v. NYSARC, Inc. · filed 2014-05-29(a)(3), (e)

We agree with Supreme Court that this claim was waived by defendant’s failure to assert it in the answer (see CPLR 3211 [a] [3]; [e]; Matter of Ford v New York State Racing & Wagering Bd., 107 AD3d 1071, 1076 n 6 [2013], lv denied 22 NY3d 947 [2013]).

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

Robinson v. Plaro Estates, Inc. · filed 2014-07-02(a)(3), (e)

To the extent the defendants contend that the plaintiff lacks standing to prosecute this action in his individual capacity, they waived this argument by not raising it in their answer, or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [a] [3]; [e]; 32nd Ave., LLC v Angelo Holding Corp., 88 AD3d 986, 987 [2011]).

Section 3211(e) waives a lack-of-capacity defense unless it is raised by pre-answer motion or in the answer.

Town of Delhi v. Telian · filed 2014-07-03(e)

Here, plaintiffs capacity to sue was not raised by pre-answer motion or in defendant’s answer. Consequently, Supreme Court erred in raising the issue sua sponte and dismissing the complaint on that basis (see CPLR 3211 [e]).

A defendant who neither answers nor makes a timely pre-answer motion under CPLR 3211 waives a lack-of-standing defense; a late motion requires an extension of time.

Southstar III, LLC v. Enttienne · filed 2014-09-17

Since the defendants did not answer the complaint and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing (see Bank of N.Y. v Cepeda, 120 AD3d 451 [2d Dept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821 [2014]; Freedom Mtge. Corp. v Toro, 113 AD3d 815 [2014]). Prior to making their instant motion to dismiss the complaint 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.

Section 3211(e) waives a standing defense in a mortgage foreclosure action if the defendant does not raise it in an answer or pre-answer motion to dismiss.

Deutsche Bank National Trust Co. v. Islar · filed 2014-11-05(e)

Where, as here, the defendants in a mortgage foreclosure action waive the issue of standing by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint (see CPLR 3211 [e]), the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244-245 [2007]).

CPLR 3211(e) waives a challenge to a party’s capacity unless it is raised in the answer or a pre-answer motion to dismiss.

County of St. Lawrence v. Shah · filed 2014-11-26(e)

Initially, despite respondents’ argument to the contrary, their assertion that petitioner, as a political subdivision of the state, can have no due process claim against its creator, is essentially a challenge to petitioner’s capacity (see City of New York v State of New York, 86 NY2d 286, 291-292 [1995]). That argument was waived by respondents’ failure to raise it as a defense in their answer or a pre-answer motion to dismiss (see CPLR 3211 [e]; City of New York v State of New York, 86 NY2d at 292; Town of Delhi v Telian, 119 AD3d 1049, 1050 [2014]).

A defendant waives a lack-of-standing defense by failing to answer or make a pre-answer motion to dismiss.

HSBC Bank USA, N.A. v. Forde · filed 2015-01-28(e)

In fact, because Forde failed to answer the complaint and did not make a pre-answer motion to dismiss the complaint, he waived the defense of lack of stand...ing (see CPLR 3211 [e]; ...).

An answer denying that the foreclosure plaintiff owns and holds the note and mortgage preserves a standing challenge without separately pleading lack of standing.

Bank of America, N.A. v. Paulsen · filed 2015-02-25(e)

Although the appellant’s answer did not raise standing as a separate defense, a fair reading of his answer reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed. Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense (see CPLR 3211 [e]; US Bank N.A. v Faruque, 120 AD3d 575 [2014]).

A CPLR 3211(a)(1) motion is untimely if made after the time to serve an answer without an extension, while under CPLR 3211(a)(7) the court accepts pleaded facts as true and gives the plaintiff every favorable inference when deciding whether the complaint states a cognizable cause of action.

Portilla v. Law Offices of Arcia & Flanagan · filed 2015-02-25(a)(1), (a)(7), (e)

The Supreme Court properly denied, as untimely, that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1) insofar as asserted against them, as it was not made within the time period in which the appellants were required to serve an answer (see CPLR 3211 [e]), and no extension of time to make the motion was requested by the appellants or granted by the court (see CPLR 2004; Lema v New York Cent. Mut. Fire Ins. Co., 112 AD3d 891 [2013]; Clinkscale v Sampson, 74 AD3d 721 [2010]; Bennett v Hucke, 64 AD3d 529 [2009]; Bowes v Healy, 40 AD3d 566 [2007]). ... The Supreme Court also properly denied that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) insofar as asserted against them. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169, 176 [2011] [internal quotation marks omitted]; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812 [2013]; Held v Seidenberg, 87 AD3d 616, 617 [2011]). Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint alleged sufficient material facts giving rise to a cognizable cause of action to recover damages for legal malpractice.

A motion to dismiss for failure to state a claim under section 3211(a)(7) may be made at any time.

Kritzer v. Ventura Insurance Brokerage, Inc. · filed 2015-03-04(e)

No authority permits the court to abrogate CPLR 3211 (e)’s provision that a motion pursuant to CPLR 3211 (a) (7), failure to state a claim, “may be made at any . . . time.”

A defendant can waive a standing defense by failing to raise it in an earlier dismissal motion or appeal and by participating in the litigation for years without raising it.

Crystal Clear Development, LLC v. Devon Architects of New York, P.C. · filed 2015-04-15(e)

The defendants, however, waived this defense by not moving on these grounds in their prior motion to dismiss the complaint pursuant to CPLR 3211 (a) and/or for summary judgment dismissing certain causes of action, by not raising this issue in the prior appeal to this Court, and by otherwise actively participating in this litigation for several years without raising any such concern (see CPLR 3211 [e]; City of New York v State of New York, 86 NY2d 286, 292 [1995]; Reich v Wolf & Fuhrman, P.C., 36 AD3d 885, 887 [2007]; Matter of Fastag v Chemical Bank, 242 AD2d 445, 446 [1997]; see generally Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]).

A defendant waives a lack-of-standing defense by failing to raise it in the answer or a pre-answer motion to dismiss and cannot first raise it in opposition to summary judgment.

Wells Fargo Bank, N.A. v. Erobobo · filed 2015-04-29(a)(3), (e)

Nor did Erobobo raise this defense in a pre-answer motion to dismiss the complaint. Accordingly, ... the defendant waived the defense of lack of standing (see CPLR 3211 [a] [3]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168 [1985]; Bank of N.Y. Mellon Trust Co. v McCall, 116 AD3d 993 [2014]; Aames Funding Corp. v Houston, 57 AD3d 808 [2008]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244 [2007]), and could not raise that defense for the first time in opposition to the plaintiffs motion for summary judgment (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 240).

Section 3211(e) waives a lack-of-capacity defense if it is not raised in a pre-answer motion to dismiss or in the answer.

Matter of Ray C. · filed 2015-05-13(e)

Contrary to the Surrogate’s Court’s finding, Donald waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211 [e]; see generally JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 84 AD3d 1173 [2011]; Complete Mgt., Inc. v Rubenstein, 74 AD3d 722 [2010]; Wendover Fin. Servs. v Ridgeway, 93 AD3d 1156 [2012]).

Section 3211(e) treats a lack-of-standing defense as waived if the defendant fails to raise it in an answer or a timely pre-answer motion.

Nationstar Mortgage LLC v. Bremner · filed 2015-05-22(e)

In addition, the defendants waived any argument that plaintiff lacked standing to commence the foreclosure action by failing to interpose an answer or file a timely pre-answer motion which asserted the defense of standing (see CPLR 3211 [e]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983 [2d Dept 2010]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2d Dept 2010]; HSBC Bank, USA v Dammond, 59 AD3d 679 [2d Dept 2009]).

A defendant who fails to raise lack of standing in an answer or preanswer motion to dismiss waives that defense, and the plaintiff need not establish standing.

JPMorgan Chase Bank, National Ass'n v. Butler · filed 2015-06-10(e)

“Where, as here, the defendants in a mortgage foreclosure action waive the issue of standing by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint (see CPLR 3211 [e]), the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law” (Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d at 567; see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 244-245).

A statute of limitations defense must be raised in a pre-answer motion to dismiss or in the answer; a court cannot raise it sua sponte when the opposing party is prejudiced.

Matter of Level 3 Communications, LLC v. Essex County · filed 2015-06-11(a)(5), (e)

Here, because respondent Essex County failed to raise the statute of limitations as an affirmative defense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte (see CPLR 3018 [b]; Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 71 AD3d 657, 658 [2010]).

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.

Onewest, F.S.B. v. Goddard · filed 2015-09-16(e)

“[D]efenses 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 from the delay”

CPLR 3211(e) generally waives a lack-of-standing defense omitted from the answer and from a motion to dismiss, but the defense may be added by amendment if the amendment meets the applicable requirements.

Bank of New York Mellon v. Aquino · filed 2015-09-30(e)

Although, generally, this defense is waived under CPLR 3211 (e) where not raised in an answer or made the subject of a motion to dismiss, 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 (see CPLR 3025 [b]; Aurora Loan Servs., LLC v Dimura, 104 AD3d 796, 797 [2013]; U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724 [2011]; Complete Mgt., Inc. v Rubenstein, 74 AD3d 722, 723 [2010]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

CPLR 3211(e) subjects defenses of lack of standing and capacity to sue to the same waiver rule.

Mortgage Electronic Registration Systems, Inc. v. Gifford · filed 2015-11-05(e)

The defenses of standing and capacity to sue are both subject to the same waiver rule under CPLR 3211 (e) (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2d Dept 2007]).

Section 3211(e) treats a defense not raised in the answer as waived.

AXA Art Insurance Corp. v. Fortress Fine Art Storage · filed 2016-10-20(e)

Defendant waived this argument by failing to raise it in the answer (CPLR 3211 [e]; Wells Fargo Bank, N.A. v Jones, 139 AD3d 520, 524 [1st Dept 2016]). In any event, the complaint adequately alleges that plaintiff is subrogated to the Foundation’s rights of recovery against defendant for the damage to the photograph, and none of the documentary evidence submitted by defendant conclusively refutes this allegation.

Section 3211 requires a defendant to raise lack of standing in an answer or a pre-answer motion to dismiss to avoid waiving the defense.

Filan v. Dellaria · filed 2016-11-23(a)(3); (e)

While the court properly determined that the RSR Mortgagees had waived the defense of lack of standing by failing to raise it in their answer or in a pre-answer motion to dismiss, and were thus precluded from raising it in their opposition to US Bank’s motion for summary judgment or in support of their cross motion for summary judgment dismissing the amended complaint in action No. 3 insofar as asserted against them (see CPLR 3211 [a] [3]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168 [1985]; JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780 [2015]; Wells Fargo Bank, N.A. v Erohobo, 127 AD3d 1176, 1177-1178 [2015]), Dellaria did not waive the defense of lack of standing.

A statute of limitations defense is waived if it is raised neither in a pre-answer motion nor in the responsive pleading.

Messina v. Lippman · filed 2016-12-07(e)

Defendant's statute of limitations defense pursuant to CPLR 3211 (a) (5) was waived pursuant to CPLR 3211 (e), since defendant had failed to raise the statute of limitations defense by either a pre-answer motion or in the responsive pleading.

A defendant who neither answers the complaint nor makes a pre-answer motion to dismiss waives the defense of lack of standing.

US Bank National Ass'n v. Singer · filed 2016-12-28(e)

Further, by failing to answer the complaint or make a pre-answer motion to dismiss the complaint, the defendants waived the defense of lack of standing (see HSBC Bank USA v Angeles, 143 AD3d 671 [2016]; U.S. Bank N.A. v Gulley, 137 AD3d at 1009).

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

Citigroup v. Kopelowitz · filed 2017-02-22(e)

Contrary to the appellants’ contention, by failing to raise the issue of the plaintiff’s standing to commence this action in their answer (see CPLR 3018 [b]), or make a preanswer motion to dismiss based on lack of standing (see CPLR 3211 [e]), they waived the issue (see JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780 [2015]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244-245 [2007]).

Section 3211(e) waives a capacity-to-sue objection that is not pleaded as an affirmative defense in the answer.

Bank of New York Mellon v. Morga · filed 2017-03-09(e)

The court rejects the challenge to the claimed lack of capacity to sue, since it is not set forth as an affirmative defense in the answer and as such, is waived pursuant to CPLR 3211 (e).

Section 3211(e) does not waive a statutory notice condition-precedent defense merely because the defendant omitted it from a preanswer motion to dismiss.

Mautner-Glick Corp. v. Glazer · filed 2017-03-16(e)

Petitioners’ threshold argument that tenant waived her right to contest service of the notice of nonrenewable (the Golub Notice) because she failed to raise it in her preanswer motion to dismiss is misplaced. Tenant’s defense that she was not properly served with the Golub Notice was not a defense based on lack of personal jurisdiction, but on landlords’ failure to comply with a condition precedent to suit (W54-7 LLC v Schick, 14 Misc 3d 49, 50 [App Term, 1st Dept 2006]).

CPLR 3211(e) allows a defendant to waive a standing defense.

Castle Restoration & Construction, Inc. v. Castle Restoration, LLC · filed 2017-04-05(e)

In any event, because the defendants waived a defense based on standing (see CPLR 3211 [e]), this evidence would not have changed the prior determination (see CPLR 2221 [e]).

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

HSBC Bank USA, National Ass'n v. Szoffer · filed 2017-04-20(a)(3), (e)

However, the record makes clear— and defendants readily concede — that they failed to raise lack of standing in their answer or in the context of a timely pre-answer motion to dismiss, thereby waiving this defense (see CPLR 3211 [a] [3]; [e]; HSBC Mtge. Corp. [USA] v Johnston, 145 AD3d 1240, 1241 [2016]; Nationstar Mtge., LLC v Alling, 141 AD3d at 917).

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

Chase Home Finance, LLC v. Howland · filed 2017-04-20(a)(3), (e)

Supreme Court correctly found that defendants waived their ... right to contest plaintiffs standing inasmuch as “the failure to raise lack of standing as an affirmative defense in an answer or in a pre-answer motion to dismiss constitutes a waiver of such affirmative defense” (HSBC Mtge. Corp. [USA] v Johnston, 145 AD3d 1240, 1241 [2016]; see CPLR 3211 [a] [3]; [e]; HSBC Bank USA, N.A. v Sage, 143 AD3d 1214, 1215 [2016]; Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 [2016]).

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

Ng v. Candelas · filed 2017-04-07(a)(5), (e)

The Civil Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that it was barred by the statute of frauds since defendant had waived the affirmative defense of the statute of frauds by failing to assert it either in his answer to the complaint or in a pre-answer motion to dismiss the complaint ( see CPLR 3211 [a] [5]; [e]; 23/23 Communications Corp. v General Motors Corp. , 257 AD2d 367 [1999]; Con-Solid Contr. v Litwak Dev. Corp. , 236 AD2d 437 [1997]; see also CPLR 3018 [b]).

Section 3211(e) waives a lack-of-capacity defense unless it is raised in the answer or a pre-answer motion to dismiss.

MJ Sanfilippo & Assoc., Inc. v. Charlack · filed 2017-04-27(e)

As defendants failed to raise plaintiff's alleged lack of legal capacity to sue ( see CPLR 3211 [a] [3]) in their answer or in a pre-answer motion to dismiss the [*2] complaint, this ground for dismissal was waived ( see CPLR 3211 [e]).

CPLR 3211(e) preserves objections to standing and capacity to sue when they are asserted as affirmative defenses in the answer.

Meissner v. Yun · filed 2017-05-11(e)

Moreover, defendants did not waive their right to raise plaintiff’s lack of standing and capacity to sue since they asserted the affirmative defense in their answer (Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007]; CPLR 3211 [e]).

A defendant waives an improper service objection by failing to raise it in the answer or a motion to dismiss.

Law Offs. of Peter D. Hoffman, P.C. v. Cullen · filed 2017-05-17(e)

The defendants’ argument that personal service of the summons and complaint was improper has been waived, as they failed to assert improper service in their answer or in their motion to dismiss the complaint (see Generation Mtge. Co. v Medina, 138 AD3d 688, 689 [2016]).

A defendant waives the defense of lack of standing by failing to raise it in an answer or timely pre-answer motion.

American Home Mortgage Servicing, Inc. v. Arklis · filed 2017-05-31(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 Hussain, 78 AD3d 989, 990 [2010]).

Section 3211(e) waives a defendant’s standing defense if it is not raised in an answer or timely pre-answer motion to dismiss.

Moise v. Ocwen Loan Servicing LLC (In re Moise) · filed 2017-07-21(e)

By failing to challenge IndyMac’s standing to commence the foreclosure action in the Foreclosure Litigation through an answer or timely filed pre-answer motion to dismiss, Plaintiff relinquished his right to raise “standing” as a defense to the foreclosure and he cannot raise it before this Court in his bankruptcy proceeding.

A statute of frauds defense cannot be raised for the first time on appeal.

Aly v. Abououkal, Inc. · filed 2017-08-02(e)

The Abououkal defendants’ statute of frauds defense is improperly raised for the first time on appeal (see CPLR 3211 [e]; Papell v Calogero, 68 NY2d 705, 707 [1986]).

Section 3211(e) requires a defendant to raise the affirmative defense of release in a pre-answer motion to dismiss or a responsive pleading to avoid waiving it.

Outdoors Clothing Corp. v. Schneider · filed 2017-08-16(e)

As with the other defenses and objections listed in CPLR 3211 (a) (5), the affirmative defense of release is waived unless it is raised in a pre-answer motion to dismiss or in a responsive pleading (see CPLR 3211 [e]; Mendrzycki v Cricchio, 58 AD3d 171, 174 [2008]).

Section 3211(e) requires a pre-answer motion to dismiss to be made within the prescribed time for responding.

Matter of Marafito v. McDonough · filed 2017-08-24(e)

Initially, we agree with petitioners that respondents did not timely raise this issue because the motion to dismiss was made outside of the prescribed time period (see CPLR 404 [a]; 3211 [e]; see generally EMC Mtge. Corp. v Gass, 114 AD3d 1074, 1075 [2014]).

Section 3211(e) did not waive defendants’ right to raise counsel’s Judiciary Law § 470 violation.

Arrowhead Capital Finance, Ltd. v. Cheyne Specialty Finance Fund L.P. · filed 2017-10-17(e)

Defendants did not waive their right to argue that plaintiff’s counsel violated Judiciary Law § 470 (see CPLR 3211 [e]).

Section 3211(e) treats defenses as waived when they are not asserted in the answer or added by amendment.

Country-Wide Insurance Co. v. Gotham Medical, P.C. · filed 2017-10-26(e)

Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211 [e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses.

CPLR 3211(e) allows a defense based on standing to be waived.

Castle Restoration & Construction, Inc. v. Castle Restoration, LLC · filed 2017-11-08(e)

In any event, because the defendants waived a defense based on standing (see CPLR 3211 [e]), this evidence would not have changed the prior determination (see CPLR 2221 [e]).

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

Weiss v. Phillips · filed 2017-11-21(e)

Indeed, Phillips waived lack of standing as a defense by failing to raise it in the answer, or by a pre-answer motion (CPLR 3211[e]; 3211[a][3]; see also Security Pac. Natl. Bank v Evans , 31 AD3d 278, 279-281 [1st Dept 2006], appeal dismissed 8 NY3d 837, 862 [2007]).

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

Bank of New York Mellon Trust Co., National Ass'n v. Balash · filed 2017-12-21(e)

Further, defendant waived any challenge to plaintiff’s standing by failing to raise it in either a pre-answer motion to dismiss or an answer, neither of which she served (see CPLR 3211 [e]; HSBC Bank USA, N.A. v Szoffer, 149 AD3d 1400, 1401 [2017]).

CPLR 3211(e) waives service of process and standing defenses if they are not timely raised in an answer or pre-answer motion to dismiss.

U.S. Bank National Ass'n v. Thomas · filed 2017-12-28(e)

Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived (CPLR 3211 [e]; International Bus. Machs. Corp. v Murphy & O’Connell, 172 AD2d 157, 158 [1st Dept 1991], appeal dismissed 78 NY2d 908 [1991] [service of process]; Security Pac. Natl. Bank v Evans, 31 AD3d 278, 280-281 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007] [standing]).

CPLR 3211(a)(5) permits dismissal based on the statute of limitations, and the 60-day waiver rule does not apply to such motions.

Baity v. City of Buffalo · filed 2018-03-16(a)(5)

We reject plaintiff's contention that defendants waived their statute of limitations defense because their motion was made more than 60 days after interposing their answer. The 60-day waiver rule does not apply to motions to dismiss based on the statute of limitations.

Section 3211 permits dismissal based on res judicata and requires that the defense be timely raised or it is waived.

Matter of Brown v. Stanford · filed 2018-07-19(a)(5), (e)

Here, however, respondent did not timely move to dismiss the petition and did not assert the defense of res judicata in its answer, and, therefore, this defense is waived ( see CPLR 3211 [a] [5]; [e]; Kreamer v Town of Oxford , 96 AD3d 1130, 1132 n 3 [2012]; Ouyang v Jeng , 260 AD2d 618, 619-620 [1999]).

Section 3211(e) waives an objection or defense based on a prior pending action or res judicata unless it is raised by motion to dismiss or in the responsive pleading.

Manners v. McMahon (In re David X. Manners Co.) · filed 2018-12-21(e)

The New York Civil Practice Law and Rules ("CPLR"), however, provides in pertinent part that any objection or defense based upon a prior pending action or res judicata "is waived unless raised either by [a] motion [to dismiss] or in the responsive pleading." CPLR Rule 3211(e). ... Therefore, according to the CPLR, the Debtor is deemed to have waived its res judicata defense.

CPLR 3211 permits a defendant to seek dismissal for lack of standing and waives that defense if it is not raised in a pre-answer motion or responsive pleading.

US Bank N.A. v. Nelson · filed 2019-01-23(a)(3), (e)

It is by now a firmly established principle that the issue of whether a plaintiff lacks standing to commence an action is waived unless it is raised in the answer or in a pre-answer motion to dismiss ( see CPLR 3211[a][3]; [e]; Matter of Prudco Realty Corp. v Palermo , 60 NY2d 656, 657; US Bank N.A. v Konstantinovic , 147 AD3d 1002, 1004; HSBC Bank USA, N.A. v Taher , 104 AD3d 815, 817).

Section 3211 permits a defendant to seek dismissal by motion, and certain defenses are waived if not raised in the answer or such a motion.

GHI Mktg., Inc. v. Diven · filed 2019-03-13(a), (e)

Navajo Fields waived its right to challenge the plaintiff's standing by failing to assert that defense in its answer or in a motion pursuant to CPLR 3211(a) ( see CPLR 3211[e]; Matter of Prudco Realty Corp. v Palermo , 60 NY2d 656, 657; Bank of N.Y. Mellon Trust Co. v McCall , 116 AD3d 993).

Section 3211(a)(5) requires a motion asserting res judicata to be made before the responsive pleading is due; after default, the defense requires vacating the default and leave to serve a late answer.

U.S. Bank N.A. v. Gilchrist · filed 2019-05-29(a)(5)

Such a motion must be made "before service of the responsive pleading is required" (CPLR 3211[e]), or it is untimely ( see Bennett v Hucke , 64 AD3d 529, 530). ... Accordingly, without more, that branch of Gilchrist's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata was untimely ( see Deutsche Bank Natl. Trust Co. v Ramharrack , 139 AD3d 787, 789; Archer v Motor Veh. Acc. Indem. Corp. , 118 AD3d 5, 11; Lema v New York Cent. Mut. Fire Ins. Co. , 112 AD3d 891, 892; Holubar v Holubar , 89 AD3d 802).

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

HSBC Bank USA, N.A. v. Diallo · filed 2021-01-27(e)

Furthermore, where, as here, the plaintiff has demonstrated, prima facie, that a defendant is in default because he "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" ( Deutsche Bank Natl. Trust Co. v Hall , 185 AD3d 1006, 1011 [emphasis omitted]; see First Franklin Fin. Corp. v Alfau , 157 AD3d 863, 865; Nationstar Mtge., LLC v Kamil , 155 AD3d 968, 968; Fried v Jacob Holding, Inc. , 110 AD3d 56, 60; cf. CPLR 5015[a]), and obtaining leave to serve a late answer ( see CPLR 3012[d]). This is true, even if the nonjurisdictional defense "may be raised at any time" ( Flagstar Bank, FSB v Jambelli , 140 AD3d 829, 830; see HSBC Bank USA, N.A. v Hasis , 154 AD3d 832, 834; PHH Mtge. Corp. v Celestin , 130 AD3d 703, 704), and "regardless of whether it is exempt from the waiver provisions of CPLR 3211(e)" ( Deutsche Bank Natl. Trust Co. v Hall , 185 AD3d at 1011; see Deutsche Bank Natl. Trust Co. v Ford , 183 AD3d 1168; see also JPMorgan Chase Bank, N.A. v Carducci , 67 Misc 3d 561 [Sup Ct, Westchester County]; cf. RPAPL 1302-a).

CPLR 3211(e) requires a motion to dismiss to be served before the responsive pleading is due; a late motion may be denied on that ground alone.

Hamilton Equity Group, LLC v. Lumbrereas · filed 2021-02-05(e)

CPLR 3211 (e) provides that a party may move to dismiss the complaint "[a]t any time before service of the responsive pleading is required" ( see Siegel, NY Prac § 272 at 469 [5th ed 2011]). Here, because plaintiff effected service of the summons and complaint pursuant to CPLR 308 (4), defendant had "[30] days after service is complete" to serve a responsive pleading (CPLR 3012 [c]). We conclude that the cross motion is untimely as a matter of law because it was not served within that 30-day time frame, allowing Supreme Court to deny it on that ground alone ( see Bennett v Hucke , 64 AD3d 529, 530 [2d Dept 2009]; Bowes v Healy , 40 AD3d 566, 566 [2d Dept 2007]; Hanover Ins. Co. v Finnerty , 225 AD2d 1054, 1055 [4th Dept 1996]).

A motion to dismiss under CPLR 3211(a)(1) is untimely when made after the defendant serves an answer.

City of New York v. Shahid · filed 2021-03-10(e)

The Supreme Court properly denied, as untimely, that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against him, as it was made after the defendant served his answer ( see CPLR 3211[e]; Hendrickson v Philbor Motors, Inc. , 102 AD3d 251, 257).

Section 3211(e) does not waive defenses when no cause of action was asserted against the party that could have moved to dismiss it, and the party raises those defenses when a claim is asserted.

Fleet Natl. Bank v. Impol Seval Aluminum Rolling Mill Inc. · filed 2021-03-30(e)

CPLR 3211(e) is inapplicable here. ... As such, it asserted no cause of action against SCBM that SCBM could have moved to dismiss. Once Beogradska appeared by cross motion and asserted its claim to the funds, SCBM raised its arguments in a timely fashion.

Section 3211(e) permits a defendant to preserve a release defense by pleading a contract defense in the answer, because a release is a contract.

Riehm Corp. v. Brennan · filed 2021-04-13(e)

Defendant did not waive his defense based on the release in the settlement agreement by failing to timely assert it (CPLR 3211[e]), since he pleaded a defense based on contract in his answer, and a release is a contract ( Burgos , 155 AD3d at 600).

A defendant that fails to assert a documentary-evidence defense in its answer cannot later move to dismiss on that ground.

Doe v. Intercontinental Hotels Group, PLC · filed 2021-04-01(e)

Initially, that branch of Kent's motion to dismiss which was pursuant to CPLR 3211(a)(1) was untimely. Kent did not assert a defense founded upon documentary evidence in the answers it filed to plaintiffs' initial and amended complaints before it moved to dismiss (CPLR 3211[e]; see Masada Universal Corp. v Goodman Sys. Co. , 121 AD2d 518, 518-519 [2d Dept 1986]).

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

Rosenzweig v. Gubner · filed 2021-05-26(a)(7)

Since that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(7) was made after the time to appear or answer had expired, the Supreme Court should have denied that branch of the motion as untimely ( see Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC , 140 AD3d 1054, 1055).

An objection to service of a proper predicate notice is not waived when the tenant raises it in the answer and at trial.

146 Flushing Ave., LLC v. 66S Fusion, Inc. · filed 2021-06-25(e)

Service of a proper predicate notice is an element of landlord's case ( see Chinatown Apts. v Chu Cho Lam , 51 NY2d 786, 788 [1980]; Grenadeir Parking Corp. v Landmark Assoc. , 283 AD2d 379, 380 [2001]; Hendrickson v Lexington Oil Co. , 41 AD2d 672 [1973]) and was not waived, as tenant asserted it in its answer and at trial ( see CPLR 3211 [e]; Mautner-Glick Corp. v Glazer , 148 AD3d 515 [2017]; W54-7 LLC v Schick , 14 Misc 3d 49 [App Term, 1st Dept 2006]).

CPLR 3211(e) requires a pre-answer motion to dismiss to be made before the answer is due unless the court permits a late motion.

Gerster's Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC · filed 2021-07-08(e)

Although not recognized by Supreme Court, [FN2] defendants' pre-answer motion to dismiss was untimely, as it was not made before service of the answer was required ( see CPLR 3211 [e]) and defendants did not receive permission to file a late pre-answer motion to dismiss (167 AD3d at 1355-1356).

A motion to dismiss under CPLR 3211(a)(5) made after an answer is treated as a summary judgment motion when it relies on CPLR 3211(a) grounds asserted in the answer.

Matter of Fernandez v. Town of Benson · filed 2021-07-29(a)(5)

Because respondents' motion to dismiss pursuant to CPLR 3211 (a) (5) was made after answer, it was properly a motion for summary judgment based upon CPLR 3211 (a) grounds asserted in the answer ( see Johnson v Collyer , 191 AD3d 1192, 1193 n [2021]; Jones v State of New York , 171 AD3d 1362, 1362 n 1 [2019], appeal dismissed 33 NY3d 1056 [2019]).

CPLR 3211(e) requires documentary-evidence and lack-of-capacity defenses to be raised within the time to answer or they are waived.

Simon v. Lewis · filed 2022-06-28(e)

Lewis waived his arguments based on documentary evidence and lack of capacity to sue by failing to raise them within the time to answer the complaint ( see CPLR 3211[e]; Dougherty v City of Rye , 63 NY2d 989, 991-992 [1984]).

A foreclosure defendant waives a lack-of-standing defense by failing to raise it in the answer or a pre-answer motion to dismiss, subject to the home-loan exception in RPAPL 1302-a.

Wilmington Trust, National Association v. Winta Asset Management LLC · filed 2022-07-08(e)

Because the Answering Defendants did not raise the issue of the plaintiff’s standing to foreclose in their Answer or the pre- answer motion to dismiss, the Answering Defendants waived their standing challenge.

A claim that losses belong to an entity and must be pursued derivatively is not waived by failing to raise lack of standing in an answer or pre-answer motion.

Mohinani v. Charney · filed 2022-08-02(a)(3), (e)

We reject plaintiffs' argument that any defense based on the derivative nature of the claims at issue was waived because the defense of lack of standing was not raised under CPLR 3211(a)(3) in Charney's answer or by a pre-answer motion to dismiss ( see CPLR 3211[e]).

An unpleaded collateral estoppel defense may support dismissal under CPLR 3211(a)(5) if it causes the opposing party no surprise or prejudice.

Laga v. Unitrin Auto & Home Ins. Co. · filed 2022-08-19(a)(5)

Furthermore, an unpleaded defense may serve as the basis for the dismissal of a complaint in the absence of surprise or prejudice to the opposing party ( see Sullivan v American Airlines, Inc. , 80 AD3d 600, 602 [2011]; Vixan Cab Corp. v Chelsea Rental Corp. , 72 Misc 3d 128[A], 2021 NY Slip Op 50594[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Defenses waived under CPLR 3211(e) may be raised in an amended answer if the delay does not prejudice or surprise the opposing party.

U.S. Bank N.A. v. Cuesta · filed 2022-08-24(e)

Contrary to the plaintiff's 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; see Bank of N.Y. Mellon v Aquino , 131 AD3d 1186, 1187; Onewest, F.S.B. v Goddard , 131 AD3d 1028, 1028).

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

Johnson v. McKay · filed 2022-09-29(e)

Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in granting defendants leave to amend their answer to assert a statute of limitations defense. "[D]efenses 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 [3d Dept 1998]; see U.S. Bank N.A. v Laino , 172 AD3d 947, 947 [2d Dept 2019]).

Section 3211(e) requires a defendant who defaulted without answering or timely moving before answer to vacate the default and obtain leave to serve a late answer before invoking res judicata.

Capital One N.A. v. Ezkor · filed 2022-10-19(e)

Moreover, having failed to interpose an answer or file a timely pre-answer motion asserting the defense of res judicata, the defendant could not properly invoke that defense without first vacating its default and obtaining leave to serve a late answer that asserts res judicata as an affirmative defense ( see CPLR 3211[e]; U.S. Bank N.A. v Gilchrist , 172 AD3d 1425, 1428).

A party waives the CPLR 3211(a)(4) defense of another action pending by failing to raise it in a pre-answer motion or as an affirmative defense in the answer.

US Bank, N.A. v. Brown · filed 2023-02-01(a)(4), (e)

Here, however, the defendant waived the CPLR 3211(a)(4) defense by failing to raise it in a pre-answer motion to dismiss or as an affirmative defense in her answer ( see id. § 3211[e]; Green Point Sav. Bank v Clarke , 220 AD2d at 385).

CPLR 3211(e) provides for waiver of certain affirmative defenses.

US Bank N.A. v. Okoye-Oyibo · filed 2023-02-01(e)

The plaintiff demonstrated, prima facie, that those affirmative defenses [*3]and counterclaims were waived, were without merit, or were conclusory in nature and contained no factual allegations ( see CPLR 3211[e]; Countrywide Home Loans Servicing, L.P. v Vorobyov , 188 AD3d 803, 805).

A defense generally waived under CPLR 3211(e) may be raised in an answer amended with leave of court.

Wall St. Mtge. Bankers, Ltd. v. Berquin · filed 2023-02-22(e)

Moreover, although a defense is generally waived under CPLR 3211(e) where not raised in an answer or made the subject of a motion to dismiss, it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) ( see Bank of N.Y. Mellon v Aquino , 131 AD3d 1186, 1187; Aurora Loan Servs., LLC v Dimura , 104 AD3d 796, 797; U.S. Bank, N.A. v Sharif , 89 AD3d 723, 724; Complete Mgt., Inc. v Rubenstein , 74 AD3d 722, 723).

A pre-answer motion to dismiss under CPLR 3211(a) is timely if made before the responsive pleading is due.

Trujillo v. Collado · filed 2023-06-21(e)

Contrary to the Supreme Court's conclusion, Trujillo's pre-answer motion pursuant to CPLR 3211(a) was not untimely, as it was made before service of the responsive pleading was [*2]required ( see id. § 3211[e]).

CPLR 3211(a)(5) permits dismissal based on discharge in bankruptcy, but the defense is waived if not timely raised under CPLR 3211(e).

Board of Directors of Colonial Sq. Homeowners' Assn., Ltd. v. Signorile · filed 2023-09-20(a)(5), (e)

A party may move for judgment dismissing one or more causes of action on the ground that the cause of action may not be maintained because of discharge in bankruptcy ( see id .). Here, the defendant waived this defense by failing to timely raise it ( see id . § 3211[e]).

Section 3211(e) requires a res judicata defense to be raised timely.

U.S. ROF III Legal Title Trust 2015-1 v. Rufai · filed 2025-02-05(e)

Moreover, the defendant's CPLR 3217(c) argument is in the nature of a res judicata defense, which was never timely raised on that basis ( see CPLR 3211[e]).

CPLR 3211(e) does not waive a Not-for-Profit Corporation Law § 720-a defense omitted from a motion to dismiss or answer because it is not among the defenses the section expressly deems waived.

Young Adult Inst., Inc. v. Corporate Source, Inc. · filed 2025-03-11(e)

Blaine's Not-for-Profit Corporation Law § 720-a defense is properly considered notwithstanding that it was not raised in his motions to dismiss or in his answer because this is not among the defenses expressly deemed to be waived under CPLR 3211(e) if not asserted in such filings ( see CPLR 3211[a][11], [e]).

A motion under § 3211(a)(1) must be made before service of a responsive pleading, and a motion under § 3211(g) must receive preference in hearing.

Elgerabli v. Allen · filed 2025-11-12(e), (g)

Since the defendant's cross-motion was made, in part, pursuant to CPLR 3211(a)(1), which must be made before service of a responsive pleading, and CPLR 3211(g), which must be given preference, we remit the matter to the Supreme Court, Queens County, for a determination in the first instance on the merits of that branch of the defendant's cross-motion which was pursuant to CPLR 3211(a)(1) and (7) and (g) to dismiss the complaint insofar as asserted against him.

Section 3211(e) treats a res judicata defense as waived when respondents fail to raise it in their answer.

Matter of Windermere Props. LLC v. City of New York · filed 2025-12-04(e)

OATH and the other respondents waived the defense of res judicata by failing to raise it in the answer (CPLR 3211[a][5], [e]).

Section 3211(e) requires a defendant to raise res judicata in an answer or a timely pre-answer motion; a defendant in default must first vacate the default and obtain leave to serve a late answer to invoke it.

U.S. Bank Trust, N.A. v. Zamis · filed 2026-06-17(e)

However, contrary to the appellant's contention, "having failed to interpose an answer or file a timely pre-answer motion asserting the defense of res judicata, the [appellant] could not properly invoke that defense without first vacating its default and obtaining leave to serve a late answer that asserts res judicata as an affirmative defense" ( Capital One N.A. v Ezkor , 209 AD3d 823, 825; see CPLR 3211[e]; U.S. Bank N.A. v Gilchrist , 172 AD3d 1425, 1428).

A defendant does not waive a statute of limitations defense pleaded in its answer by later opposing a motion to strike that defense.

Obstfeld v. Thermo Niton Analyzers, LLC · filed 2019-01-30(e)

Contrary to the plaintiffs' contention, the defendants' opposition to a prior motion to strike the twelfth affirmative defense did not operate as a "judicial admission" or otherwise serve to "waive" any portion of the defendants' statute of limitations defense ( cf. CPLR 3211[e]).

In a home-loan foreclosure action, CPLR 3211(e) does not waive a lack-of-standing defense omitted from a responsive pleading or pre-answer motion because RPAPL 1302-a preserves it.

US Bank N.A. v. Blake-Hovanec · filed 2021-02-10(e)

Contrary to the plaintiff's contention, the defendant did not waive the affirmative defense of lack of standing. RPAPL 1302-a (as added by L 2019, ch 739, § 1; eff Dec. 23, 2019) provides that, notwithstanding the provisions of CPLR 3211(e), "any objection or defense based on the plaintiff's lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss."

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks legal capacity or standing, and CPLR 3211(a)(4) permits dismissal when a prior pending proceeding seeks the same or substantially the same relief.

McWhinney v. Rockland Cider Works, LLC · filed 2024-12-04(a)(3), (a)(4)

In support of their cross-motion, the defendants failed to demonstrate that the plaintiffs lacked the legal capacity to sue on the ground that the plaintiffs were not aggrieved by the alleged violations of the Town's zoning code ( see Town Law § 268[2]; Goldman v A & E Club Props., LLC , 89 AD3d 681, 682) or that the plaintiffs lacked standing to maintain a common-law action to enjoin the alleged violations ( see Gershon v Cunningham , 135 AD3d 816, 816-817; Zupa v Paradise Point Assn., Inc. , 22 AD3d 843, 843-844). Accordingly, the Supreme Court properly denied dismissal of the complaint insofar as asserted against the defendants pursuant to CPLR 3211(a)(3). The defendants also failed to demonstrate that there was a prior pending proceeding between the same parties in which the relief sought was the same or substantially the same, such that dismissal of the complaint insofar as asserted against the defendants was appropriate pursuant to CPLR 3211(a)(4) ( see Jaber v Elayyan , 168 AD3d 693, 694; Dec v BFM Realty, LLC , 153 AD3d 497, 497; Swartz v Swartz , 145 AD3d 818, 822; Goldman v A & E Club Props., LLC , 89 AD3d at 683).

Section 3211(a)(1) and (7) permit dismissal when documentary evidence establishes a defense and the complaint and opposition fail to plausibly address it.

Grant v. Udoye · filed 2001-11-29(a)(1), (7)

Defendants’ documentary evidence in support of the motions to dismiss, including, in particular, the letters that plaintiff wrote to the Community Board, were sufficient to show, prima facie, that defendants were acting in the discharge of their duties and within the scope of their employment, and therefore cannot be held liable for any damages that their actions might have caused plaintiff (Social Services Law § 473 [3]). Since neither plaintiff’s complaint nor his opposition to the motions plausibly explain the meaning of these letters, or why he believes that the flight he allegedly experienced on occasions when defendants attempted to meet with him was deliberately caused (Social Services Law § 473 [3]), the action was properly dismissed (CPLR 3211 [a] [1], [7]).

Under CPLR 3211(a)(7), pleaded facts must fit a cognizable legal theory; under (a)(1), documentary evidence must conclusively establish a defense as a matter of law to warrant dismissal.

LaBarte v. Seneca Resources Corp. · filed 2001-07-03(a)(1), (a)(7)

The facts as alleged against Seneca fit within a cognizable legal theory and the documentary evidence submitted does not conclusively establish a defense to the asserted claims as a matter of law (see generally, Leon v Martinez, supra, at 87-88).

Section 3211(h) does not permit dismissal for failure to serve a notice of claim when no notice is required.

Belunes v. Minskoff Grant Realty & Management Corp. · filed 2000-12-21(h)

Since a notice of claim is not required in the instant action, the standards for dismissal under CPLR 3211 (h) have not been met.

Section 3211(a)(5) permits dismissal when a prior judgment on the merits precludes prosecution of the cause of action.

Hires v. New York Central Railroad · filed 1965-12-16(a)(5)

The prior judgment is a complete defense and precludes prosecution of the cause of action herein (CPLR 3211, subd. [a], par. 5; Israel v. Wood Dolson Co., 1 N Y 2d 116; Friedman v. Park Lane Motors, 18 A D 2d 262.)

Section 3211(a)(5) permits a party to raise a statute of limitations defense by motion to dismiss.

Anonymous v. Anonymous · filed 1965-12-17(a)(5)

While the defense of the statute is an affirmative one, a motion to dismiss is a proper method of raising the bar (CPLR 3211, subd. [a], par. 5).

A motion to dismiss on statute-of-limitations grounds should be denied when the complaint permits proof of a claim within the limitations period.

Coriale v. Mercurio · filed 1966-04-07(a)(5)

If evidence may be admitted under such allegations which could establish a cause of action which is not barred by the statute, the motion should be denied.

CPLR 3211(a) permits dismissal of a complaint when a mutual release bars the action.

Schwartz v. Regenstreif · filed 1966-10-11(a)

Order, entered February 4, 1966, denying appellant’s motion for judgment dismissing the complaint, pursuant to CPLR 3211 (subd. [a]), unanimously reversed on the law, with $50 costs and disbursements to appellant and the motion granted, with $10 costs, and complaint dismissed. Whatever may have been the rights of the respondent under the original agreement of November 1, 1961, the mutual release entered into between the parties on September 14, 1962 is a bar to the action brought by him.

A motion to dismiss on res judicata grounds fails when the prior action decided different issues and does not bar the present claim.

Terwilliger v. Terwilliger · filed 1966-12-30(a)(5)

The issues are different in Darlene’s case against Mr. Terwilliger from those litigated in the Kriner action. ... Hence, “ all the same issues ” were not tried and decided in the Kriner action. ... Defendant’s motion should be denied.

Section 3211 generally does not permit dismissal of only an equitable remedy when the complaint also seeks damages, but the court may resolve that request when it is bound up with relief the plaintiffs cannot obtain.

Lichtyger v. Franchard Corp. · filed 1966-12-30(a)(7)

Ordinarily, when plaintiffs seek both money damages and equitable relief — as these plaintiffs have against Talcott — the courts will not entertain a motion to dismiss solely that portion of the complaint which asks for the equitable remedy. ... However, in the case before us, the equitable relief sought against Talcott — rescission— coincides and is intimately bound up with the relief sought from Sheraton, to which the plaintiffs are not entitled. Under the circumstances, it would be pointless to reserve decision whether such equitable relief is obtainable against Talcott.

CPLR 3211(a)(9) permits a defense challenging in rem or quasi in rem jurisdiction.

Lefcourt v. Sea Crest Hotel & Motor Inn, Inc. · filed 1967-08-11(a)(9)

While in form the defense is permitted under CPLR 3211 (subd. [a], par. 9), it can succeed only if the obligations of the insurer to investigate, to defend, to indemnify and to make medical payments are not property within the State, for it has long been settled that ‘1 the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them” (Pennoyer v. Neff, 95 U. S. 714, 723).

CPLR 3211(a)(5) permits a motion to dismiss to raise a limitations defense; disputed facts bearing on that defense may require a hearing.

Doe v. Roe · filed 1968-01-03(a)(5)

Although a motion to dismiss is a proper method of raising the defense of the limitation period (CPLR 3211, subd. [a], par. 5; Matter of Anonymous v. Anonymous, 48 Misc 2d 949), the questions of fact here existing in view of the allegation of the petition that ‘ ‘ Respondent has acknowledged paternity of said child by furnishing support ”, should be determined at a hearing under section 531 of the Family Court Act.

Section 3211(a)(5) permits an arbitration-and-award defense, but a movant cannot first raise it in a reply affidavit without giving the opposing party an opportunity to contest it.

Hirt v. New York Automatic Canteen Corp. · filed 1968-11-12(a)(5)

In a reply affidavit (the last document served) defendant, the moving party, mentions one or more arbitrations between the parties concerning the subject matter of the suit. While arbitration and award may be a complete defense to the action (CPLR 3211, subd. [a], par. 5), it cannot be raised in this offhand fashion where no opportunity is given the adversary to contest the claim.

A court may grant dismissal under paragraphs (a)(3) and (a)(7) pursuant to a prayer for other and further relief even when the motion did not invoke those grounds.

Wolfe v. Bellizzi · filed 1969-01-25(a)(3), (a)(7)

The motion to dismiss the complaint was not made under CPLB 3211 (subd. [a], par. 3) (that the party asserting the cause of action has not legal capacity to sue) or paragraph 7 (the pleading fails to state a cause of action). Under the prayer for other and further relief, the motion to dismiss the complaint is granted under paragraphs 3 and 7.

CPLR 3211(a)(5) permits dismissal of an action brought after arbitration and award and presupposes that the award remains valid.

In re the Arbitration between Biller & David · filed 1971-11-23(a)(5)

The remedy where an action is brought following arbitration and award is a dismissal of the action pursuant to CPLR 3211 (subd. [a], par. 5) which specifically provides that a party may move for judgment dismissing one or more causes of action on the ground that “the cause of action may not be maintained because of arbitration and award”. That section, on its face, presupposes the continued validity of the award despite the bringing of a subsequent action.

A CPLR 3211 motion to dismiss on limitations grounds should be denied when the movant has not established when the limitations period began and that information is more likely available to the movant.

Ibach v. Grant Donaldson Service, Inc. · filed 1971-12-09

In its moving papers Renault does not show when the original sale of the automobile was made by it, and hence it does not clearly appear that more than 6 years elapsed between that sale and the dates in 1969 when the third-party actions were begun. Where a trial may disclose facts which sustain the complaint, the drastic remedy of summary judgment of dismissal should not be granted upon motion (Johnson v. Johnson, 33 A D 2d 640).

On a limitations motion under CPLR 3211(a)(5), once the defendant shows that the limitations period elapsed, the plaintiff must provide evidence supporting any claimed tolling.

Doyon v. Bascom · filed 1971-12-20(a)(5)

When the defendant’s affidavit established prima facie proof that the period of the Statute of Limitations had elapsed, it became the obligation of the plaintiffs to produce some evidentiary facts showing a tolling of the statute, if such were their claim.

Subdivision (a) permits dismissal when the court lacks subject matter jurisdiction, the plaintiffs lack legal capacity to sue, and the complaint fails to state a cause of action.

New York State Ass'n of Insurance Agents Inc. v. Schenck · filed 1972-12-07(a)

The cross motion of the defendant pursuant to subdivision (a) of CPLR 3211 dismissing the complaint is granted on the grounds that the court does not have jurisdiction of the subject matter of the action, the plaintiffs do not have legal capacity to sue, and the complaint fails to state a cause of action.

Section 3211(a)(5) permits dismissal when a release bars the claims in the complaint.

City Lithoplate, Inc. v. Baldwin Paper Co. · filed 1974-11-04(a)(5)

Order reversed, on the law, with $20 costs and disbursements, motion granted and complaint dismissed (CPLR 3211, subd. [a], par. 5). ... For these reasons we conclude that the release applies also to the alleged breach of defendant’s agreement to mark those skids containing tissue from more than one lot of paper. Accordingly, defendant’s motion should have been granted and the complaint dismissed.

CPLR 3211(a)(5) permits dismissal when a claim is barred by collateral estoppel, which requires a prior final judicial determination of the material issue.

Fleischer v. Uccelini · filed 1975-03-17(a)(5)

Finally, the ground upon which this motion for dismissal, is made, namely, that plaintiff is collaterally estopped (CPLR 3211, subd. [a], par. 5) has no basis. For a collateral estoppel to operate the material facts or questions in issue must have been judicially determined and conclusively settled by a judgment rendered in that action. Here there has been no such final disposition as would operate as a collateral estoppel against the defendants Van Allen.

Abandonment of a prior action is not a ground for a motion to dismiss a new action under CPLR 3211.

Freeman's Beverages, Inc. v. National Cash Register Co. · filed 1975-12-12

Abandonment is not a basis for a motion to dismiss (cf. CPLR 3211).

Section 3211(a)(5) permits a statute of limitations bar to be raised by a motion to dismiss.

Horn v. Horton · filed 1977-04-11(a)(5)

The bar of this Statute of Limitations may be raised upon a motion to dismiss the proceeding (CPLR 3211, subd [a], par 5) as well as pleaded by way of an affirmative defense.

Section 3211(a)(5) requires notice of a statute-of-limitations ground before a court may dismiss on that ground, even when the defense is evident.

Roges v. Uniform Services, Inc. · filed 1978-01-23(a)(5)

Accordingly, we reinstate those 10 causes of action (fifth through fourteenth, inclusive), without prejudice to the assertion of the defense of Statute of Limitations in the answer in order that such defense may be preserved for trial. We do not dismiss upon that ground because of the requisite of notice, however evident the defense may be.