N.Y. C.P.L.R. § 3211

A CPLR 3211(a)(5) motion based on the Statute of Frauds may be denied when the movant does not substantiate the absence of a writing and the statute’s applicability is unclear.

St. Mary & Co. v. Halberstadt · filed 1978-03-30(a)(5)

The affidavit of her attorney merely recites that "no * * * written agreement exists” without specifying the basis for such a statement. It is not at all clear that the statute relied upon (Uniform Commercial Code, § 8-319) is applicable to the situation presented and, even if it does apply, plaintiff is justified in relying on its pleading until sufficient evidence of that fact is developed.

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

Lascaris v. Price · filed 1978-04-24(a)(5)

Alternatively, CPLR 3211 (subd [a], par 5) permits the defense to be raised in a motion to dismiss. Such a motion must, however, be made prior to the filing of a responsive pleading in order to be timely. ... Accordingly, the court finds that it is proper to resolve this matter by way of motion rather than to await the proof of facts at trial that are not in dispute.

Under CPLR 3211(a)(5), a fraud complaint should not be dismissed on a limitations motion unless it conclusively appears that the plaintiff knew facts from which the fraud could reasonably be inferred.

Trepuk v. Frank · filed 1978-04-04(a)(5)

Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts (Dumbadze v Lignante, 244 NY 1, 9; see Azoy v Fowler, 57 AD2d 541).

On a motion to dismiss as time-barred, once the defendant shows the claim is facially untimely, the plaintiff must provide evidence that it is timely; a statement in counsel’s brief is insufficient.

Corrello v. Costello · filed 1978-05-08(a)(5)

However, the policy behind both cases is similar: if defendant shows a cause of action on its face is time-barred, plaintiff must come forward with proof it is not. Plaintiffs here have failed to do this; the statement in the brief of plaintiffs’ counsel is not a substitute for proof by plaintiffs regarding the date plaintiff wife reached the threshold.

A limitations motion under CPLR 3211(a)(5) cannot be resolved by accelerated judgment when factual questions require determination at trial.

Cooper v. Edinbergh · filed 1978-10-31(a)(5)

The issues discussed in Issue II above clearly preclude a decision on the law at this time. Obviously, further exploration is required to provide a fair and proper factual determination. Under these circumstances accelerated judgment is clearly inappropriate.

CPLR 3211(a)(2) permits dismissal for lack of subject matter jurisdiction, while paragraph (a)(7) may apply when failure to state a claim was intended.

Presidential Fairfield, Inc. v. Holman · filed 1979-03-08(a)(2)

Apparently, the movants are proceeding pursuant to CPLR 3211 (subd [a], par 2) which is erroneous. It cannot be gainsaid that the court has jurisdiction of the subject matter but perhaps CPLR 3211 (subd [a], par 7) was intended.

CPLR 3211(a)(5) permits dismissal when a claim is barred by the statute of limitations.

Goldrick v. Goldrick · filed 1979-05-22(a)(5)

Accordingly, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5) upon the grounds that the plaintiff’s action is barred by reason of the Statute of Limitations is granted as to both defendants.

Section 3211(a)(5) permits dismissal of a claim that is barred by a statute of limitations.

Kandel v. State Division of Human Rights · filed 1979-06-14(a)(5)

Accordingly, we treat the cross motion as one pursuant to CPLR 3211 (subd [a], par 5) to dismiss as time barred, and grant that motion.

A party moving to dismiss under CPLR 3211 on timeliness grounds bears the burden of showing that the action is time barred.

Clyde-Savannah Central School District v. Naetzker, Thorsell & Dove · filed 1979-12-14(a)(7)

Here the burden was upon INA to demonstrate in support of its motion that the action of Kosoff-Palombi was time barred (see CPLR 201; 3211, subd [a], par 7).

Section 3211(a)(1) permits dismissal when a defense is founded on documentary evidence.

NOW Productions, Inc. v. Ernest Tidyman Productions, Inc. · filed 1980-03-13(a)(1)

The documentary evidence was sufficient to warrant judgment in favor of Warner dismissing the complaint pursuant to CPLR 3211 (subd [a], par 1).

CPLR 3211(a)(1) permits dismissal of a counterclaim when documentary evidence establishes a complete defense.

Griffin v. Griffin · filed 1980-12-31(a)(1)

Under these circumstances, plaintiff has demonstrated a complete defense based upon documentary evidence in the record (see CPLR 3211, subd [a], par 1), and, therefore, the dismissal of the counterclaim was clearly warranted (Suburban Broadcasting Corp. v RCA Corp., 51 AD2d 785).

A limitations motion under § 3211(a)(5) may be denied when the papers leave factual questions about accrual and discovery of fraud; defendants may preserve the defense in their answers.

Pisano v. Stockel · filed 1981-02-09(a)(5)

Both parties submitted extensive extrinsic proof at Special Term in conjunction with defendants’ motion, pursuant to CPLR 3211 (subd [a], par 5), to dismiss the complaint as barred by the Statute of Limitations. ... On the instant papers, there is a question of fact as to the time plaintiffs’ claims accrued and the discovery of the alleged fraud. Under the circumstances, the defendants should be given the opportunity to preserve the issue by inserting it in their answers.

A movant seeking dismissal under CPLR 3211(a)(5) on Statute of Frauds grounds must show that no written contract or memorandum exists, using affidavits from people with knowledge of the facts.

Subgar Realty Corp. v. Gother Lumber & Millwork, Inc. · filed 1981-03-10(a)(5)

Plaintiffs moved to dismiss the counterclaims and affirmative defenses pursuant to CPLR 3211 (subd [a], par 5) on the ground of the Statute of Frauds (General Obligations Law, § 5-703, subd 2). The Statute of Frauds being an affirmative defense, it was incumbent on the movant to show that there was in fact no written contract or “note or memorandum thereof.” (General Obligations Law, § 5-703, subd 2.) This fact should have been shown by affidavits from persons having knowledge of the facts.

A motion to dismiss under CPLR 3211(a)(5) cannot resolve a Statute of Frauds defense as a matter of law when a triable issue remains as to whether performance is referable to the oral agreement.

Gross v. Vogel · filed 1981-04-06(a)(5)

Where a triable issue of fact exists as to referability, dismissal on motion as a matter of law is, of course, improper (cf. Bisbing v Sterling Precision Corp., 34 AD2d 427, 428).

Under CPLR 3211(a)(5), a complaint and supporting affidavit alleging fraudulent concealment and justifiable reliance can defeat a motion to dismiss based on the Statute of Limitations.

Krol v. Valone · filed 1981-03-26(a)(5)

The only question before us on the estoppel issue is whether the complaint and the affidavit of plaintiff are sufficient to preclude the granting of a motion to dismiss under CPLR 3211 (subd [a], par 5). ... Plaintiff’s assertions, if true, are sufficient to estop defendant from pleading the Statute of Limitations.

CPLR 3211(a)(7) permits dismissal of cross claims that plead the essential elements of causes of action when maintaining them would offend public policy.

Braunstein v. Jason Tarantella, Inc. · filed 1982-06-07(a)(7)

So it is that although we hold that Special Term correctly determined that the essential elements of each cross claim were pleaded, we are of the view that the distributors’ motion to dismiss the three cross claims should be granted upon the ground that the maintenance of the cross claims would offend the public policy of this State.

Section 3211(a)(7) and (a)(1) permit dismissal when an assignment attached to the complaint fails to show the plaintiff’s right to enforce the contract and supplies a documentary defense.

971 Madison Avenue Corp. v. Complex Associates · filed 1982-11-30(a)(1), (a)(7)

Because of the infirmities in the claimed assignment, which is a part of the complaint, plaintiff’s complaint was properly dismissible under CPLR 3211 (subd [a], par 7), failure to state a cause of action, and also under CPLR 3211 (subd [a], par 1), a defense founded upon documentary evidence.

A defendant does not waive CPLR 3211(a) dismissal grounds by failing to raise them in opposition to a preliminary injunction motion.

Mareno v. University of the State of New York Agricultural & Technical College · filed 1984-05-14(e)

In his appeal from the order entered September 23, 1982, plaintiff argues that defendants waived their right to move to dismiss the complaint on various grounds pursuant to CPLR 3211 (subd [a]), i.e., lack of subject matter jurisdiction, lack of standing, and failure to state a cause of action, by failing to advance these grounds in opposition to his motion for a preliminary injunction. This argument is without merit (see CPLR 3211, subd [a], pars 2, 3, 7; subd [e]).

CPLR 3211(a)(4), (5), and (7) provide grounds for dismissal based on other pending actions, res judicata, and failure to state a cause of action, respectively.

Reed v. Esplanade Gardens, Inc. · filed 1985-05-16(a)(4), (5), (7)

After reviewing the complaint and the prior litigation, we dismiss the entire fifth cause of action, under CPLR 3211 (a) (4) (other prior actions pending), (5) (res judicata), and (7) (failure to state a cause of action).

A petition’s failure to state the basis for rent stabilization coverage is not a jurisdictional defect requiring dismissal under CPLR 3211(a)(2) or (7), and the petition may be amended at trial.

Southcroft Co. v. Konopko · filed 1985-05-06(a)(2), (a)(7)

Before the court is respondent’s motion to dismiss pursuant to CPLR 3211 (a) (2) and (7) because the petition fails to specify facts which support the allegation that the premises are subject to the Rent Stabilization Law. Although 22 NYCRR 2900.21 (e) requires that the petition allege the basis for coverage, the court holds that, under modern pleading rules, such failure is not jurisdictional and the petition may be appropriately amended at trial.

CPLR 3211(a)(5) permits dismissal on Statute of Frauds grounds when the alleged part performance presents no triable issue of fact.

I.P.X. Construction Corp. v. Mergenthaler · filed 1985-05-20(a)(5)

We find no merit to appellants’ claim that dismissal on motion was improper because of the existence of triable issues of fact as to whether there was part performance unequivocally referable to the agreement (see, e.g., Burns v McCormick, 233 NY 230, 232; Anostario v Vicinanzo, 59 NY2d 662, 664; Cooper v Schube, 86 AD2d 62, affd 57 NY2d 1016; Marcraft Recreation Corp. v Devlin Co., 506 F Supp 1081, 1085).

Section 3211(a)(5) permits dismissal when a general release bars the action.

Hydrodyne Industries, Inc. v. Marine Midland Bank, N. A. · filed 1986-03-10(a)(5)

The plaintiff’s execution of a general release serves as an absolute bar to the instant action (see, CPLR 3211 [a] [5]).

CPLR 3211(a)(5) permits dismissal of an action barred by an enforceable contractual limitations period.

Wayne Drilling & Blasting, Inc. v. Felix Industries, Inc. · filed 1987-04-13(a)(5)

Absent such proof, Special Term erred in failing to give effect to the intention of the parties by holding the 90-day period valid and enforceable. Accordingly, the action is dismissed as against Felix pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) does not apply to a contractual limitations period because its limitations ground concerns a statute of limitations.

Comprehensive Foot Care Group v. Lincoln National Life · filed 1987-05-22(a)(5)

However, the motion to dismiss under CPLR 3211 (a) (5) relates to a "statute of limitations”. The defendant’s contentions are contractual in nature and not statutory. Therefore, CPLR 3211 (a) (5) is not applicable.

On a motion to dismiss based on the statute of limitations, the defendant need not prove a fact admitted in the complaint.

Petroccitto v. Metro North Commuter Railroad · filed 1988-05-31(a)(5)

The defendant had no need to prove, in its motion, that which the plaintiffs themselves admit in their complaint.

A CPLR 3211 motion to dismiss must be denied when the complaint states a cause of action and the documentary evidence does not resolve a dispositive issue as a matter of law.

Enigan v. Royal Insurance of America · filed 1989-05-22(a)(1), (a)(7)

We find that the Supreme Court properly denied the defendant’s motion to dismiss the complaint, which was apparently made pursuant to CPLR 3211 (a) (1) and/or CPLR 3211 (a) (7). The complaint states a cause of action to recover damages for breach of contract, and the documentary evidence submitted with the motion, namely, an insurance application, contained ambiguous wording and did not establish the identity of the insurance carrier, as a matter of law (cf., Dayton v Amity Estates, 24 AD2d 491).

Under CPLR 3211, allegations of a bona fide justiciable controversy withstand dismissal for failure to state a cause of action, and documentary evidence does not warrant dismissal unless it definitively disposes of the claim.

Halloran v. Halloran · filed 1990-05-07(a)(1), (a)(7)

Carol Halloran has made a sufficient showing to withstand the motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action since her allegations demonstrate the existence of a bona fide justiciable controversy (see, Sysco Corp. v Town of Hempstead, 133 AD2d 751, 752). The District Attorney’s documentary evidence does not definitively dispose of Carol Halloran’s claim that she has some vested interest in the subject property (see, Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303, 305).

A court may dismiss an action as legally insufficient under CPLR 3211(a)(7) even if the motion did not assert that ground, when the omission does not prejudice the plaintiff.

Birnbaum v. Flaum · filed 1991-04-01(a)(7)

The Supreme Court did not err in dismissing, as legally insufficient, the plaintiffs action. Although CPLR 3211 (a) (7) was not one of the grounds asserted in the motion to dismiss, the plaintiff was not prejudiced by this technical defect (cf, McLearn v Cowen & Co., 60 NY2d 686; see, Blumstein v Menaldino, 144 AD2d 412; Farkas v Tarrytown Lbr., 133 AD2d 251).

A court may grant a CPLR 3211(a) motion on an applicable ground omitted from the notice of motion if doing so causes no prejudice.

Dean R. Pelton Co. v. Moundsville Shopping Plaza, Inc. · filed 1991-05-07(a)

Nevertheless, where the wrong ground is designated but other CPLR 3211 (a) grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice, which has not been demonstrated (see, Siegel, NY Prac § 258).

CPLR 3211(a) does not authorize dismissal on the additional grounds raised under CPLR article 5, CPLR 3013, CPLR 3024, and Administrative Code § 26-516(d).

Community Housing Improvement Program, Inc. v. New York State Division of Housing & Community Renewal · filed 1991-08-26(a)

A variety of other grounds (see, e.g., CPLR art 5; see also, Administrative Code § 26-516 [d]; CPLR 3013, 3024), none of which provides a basis for dismissal (cf., Matter of Nolan v Lungen, 61 NY2d 788; CPLR 3211 [a]), were also advanced.

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action, and (a)(5) permits dismissal based on release or res judicata.

In re the Estate of Riebe · filed 1992-10-26

Acting Surrogate Snellenberg correctly denied the objections of the appellants as unintelligible (see, CPLR 3013), failing to state a cause of action (see, CPLR 3211 [a] [7]), or barred by the defenses of release or res judicata (see, CPLR 3211 [a] [5]).

A court may consider a statute of limitations defense under CPLR 3211 (a) (5) when the supporting motion papers and both parties address it, even if the notice of motion identifies only failure to state a cause of action.

Zipes v. Zipes · filed 1993-04-08(a)(5)

While the Husband’s notice of motion is addressed merely to an alleged failure to state a cause of action, the supporting motion papers clearly address not only CPLR 3211 (a) (7) but also dismissal based upon CPLR 3211 (a) (5), specifically, the Statute of Limitations bar. The court will address the Statute of Limitations issue first. It was addressed by both parties in their respective motion papers.

CPLR 3211(a)(1) and (7) permit dismissal when documentary evidence establishes that the defendants are not liable and the complaint fails to state a cause of action.

Schuckman v. Sayville Plaza Development Co. · filed 1994-02-22(a)(1), (a)(7)

The documentary evidence of a written agreement dated November 25, 1987, entered into by the appellants and the respondents’ late general partner, Kenneth NemerofF, established that the respondents are not liable to the appellants and the amended complaint fails to state a cause of action against the respondents.

A CPLR 3211 motion provides no basis to dismiss a complaint when the moving papers state no ground for dismissal under that section.

Timothy v. Peterson · filed 1994-03-08

In any event, the moving papers state no basis for dismissal of any portion of the complaint pursuant to CPLR 3211, although the first cause of action for negligent operation of a motor vehicle is appropriately limited to defendant Peterson, the operator of the offending automobile.

A court may treat a CPLR 3211 (a) (5) motion as a challenge under (a) (7) when doing so does not prejudice the plaintiff.

Rosenheck v. Calcam Associates, Inc. · filed 1996-11-07(a)(7)

Nevertheless, although defendant would not be entitled to dismissal of this claim pursuant to CPLR 3211 (a) (5), as requested, we conclude that plaintiff on this record would not be prejudiced by our treating defendant’s challenge to this cause of action as being made pursuant to CPLR 3211 (a) (7) (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C321L37, at 52).

CPLR 3211(a)'s grounds for dismissal do not encompass whether sellers contacted a buyer during the exclusive period of a brokerage agreement.

Gottesman Business Brokers, Inc. v. Goldman Fire Prevention Corp. · filed 1997-04-22(a)

We agree with plaintiff broker that the fact issue referred to the Special Referee—whether defendant sellers had contacts with the buyer during the exclusive period of the parties’ brokerage agreement—does not relate to any of the grounds enumerated in CPLR 3211 (a), and therefore should not have been immediately tried pursuant to CPLR 3212 (c), whether before a Special Referee or otherwise (see, Marshall, Bratter, Greene, Allison & Tucker v Mechner, 53 AD2d 537).

A motion under CPLR 3211(a) need not identify a specific subdivision when the motion papers make the grounds for dismissal clear.

Schenectady International, Inc. v. Employers Insurance · filed 1997-12-11(a)

There is no need to cite the specific subdivision pursuant to which relief is sought when the motion papers apprise one of the actual grounds for the application.

A prior statement does not support dismissal under CPLR 3211(a)(5) when it accurately reflected what the plaintiff knew at the time and does not preclude the current claim.

Davey v. DeMenna · filed 2000-02-10(a)(5)

Defendant DeMenná’s motion to dismiss the complaint as against him on the ground that plaintiff, in pursuing her claim for uninsured motorist benefits, took a position inconsistent with her position in the present litigation was properly denied. Plaintiffs representations at the time of her Motor Vehicle Accident Indemnification Corporation (MVAIC) filing accurately reflected the circumstance that the identity of the hit-and-run driver allegedly responsible for her injuries was not then known to her and should not foreclose her from pursuing a claim to be fully compensated for her injuries against a subsequently identified party.

A court may treat a motion mislabeled under CPLR 3211 (a) (8) as one under (a) (5) when it raises a limitations defense and the opposing party addressed that defense without prejudice.

National Union Fire Insurance v. Erazo · filed 2001-01-19(a)(5)

Inasmuch as plaintiff responded to this argument on the merits, there is no prejudice from the misidentification of the relevant subdivision. Accordingly, the court will deem the motion as one brought pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(5) and (7) permit dismissal when the complaint states only a time-barred cause of action.

Rattenni v. Cerreta · filed 2001-07-30(a)(5), (7)

Accordingly, since the complaint fails to state any cause of action other than conversion, which is time-barred, the defendant is entitled to dismissal of the complaint (see, CPLR 3211 [a] [5], [7]).

Under CPLR 3211(a)(1) and (7), adequately pleaded contract claims survive when the contractual provisions relied on do not establish as a matter of law that the defendant had no alleged obligation.

JHH Pictures, Inc. v. Rawkus Entertainment LLC · filed 2002-02-28(a)(1) and (7)

—Order, Supreme Court, New York County (Barry Cozier, J.), entered December 26, 2000, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), unanimously modified, on the law, to grant defendant’s motion insofar as to dismiss plaintiff’s fraud and tortious interference claims, and otherwise affirmed, without costs. ... The motion court properly denied defendant’s motion insofar as it sought dismissal of plaintiff’s contract-based claims, since ... the claims are adequately pleaded and the contractual provisions relied upon by defendant do not demonstrate, as a matter of law ... that it was free of the contractual obligations alleged by plaintiff, i.e., to produce and finance the marketing, promotion and distribution of a soundtrack album, and to provide licenses and clearances for the previously released tracks it provided to plaintiff for use in its film.

A defendant waives a CPLR 3211(a)(4) ground for dismissal by failing to assert it in the answer.

Time Warner Cable of New York City v. Trinity Communications Corp. · filed 2002-03-29(e)

Defendant Trinity waived the ground under CPLR 3211 (a) (4) because it was not asserted in defendant Trinity’s answer (CPLR 3211 [e]). Thus, the motion by said defendant has been denied by this court’s separate decision and order of March 27, 2002, with costs, pursuant to CPLR 8106 and 8202.

Section 3211(a)(5) requires a motion to dismiss a cause of action based on defenses such as equitable estoppel, waiver or laches.

Flynn v. Rockwell · filed 2002-06-06(a)(5)

Notably, petitioner did not plead the defenses of equitable estoppel, waiver or laches (see, CPLR 3018 [b]) and, to obtain dismissal of a cause of action based on such a defense, a motion is necessary (see, CPLR 3211 [a] [5]).

A release that affects a plaintiff’s claim only through collateral estoppel is a ground for dismissal under CPLR 3211 (a) (5), rather than the documentary-evidence ground in (a) (1).

Arida v. Essex Insurance · filed 2002-11-15(a)(1), (a)(5)

Although in seeking dismissal of the amended complaint defendant purports to rely on the defense of documentary evidence pursuant to CPLR 3211 (a) (1), the release of defendant by Riverfront can have no effect on plaintiffs’ Insurance Law § 3420 (b) (1) action except under the doctrine of collateral estoppel (see generally D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659). Thus, defendant is in effect seeking dismissal pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(1) and (7) do not warrant dismissal when the complaint states a cause of action and the defendant's documentary evidence does not conclusively establish a defense.

Hamilton Group (Delaware), Inc. v. Cablevision Corp. · filed 2003-12-31(a)(1), (a)(7)

We agree with plaintiff that Supreme Court erred in granting the motion of Cablevision Corporation (defendant) to dismiss the complaint against it pursuant to CPLR 3211 (a) (1) and (7). ... Thus, the complaint states a cause of action. In addition, the documentary evidence submitted by defendant does not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Technology for Measurement v Briggs, 291 AD2d 902, 903 [2002]) because the documentary evidence submitted by defendant indicates that it remitted payment to an address other than the address specified in the redirection letter.

Dismissal under CPLR 3211(a)(1) and (5) is improper when it is unclear as a matter of law whether the defendants signed an agreement solely for a corporation or also in their individual capacities.

M.L. Weiner & Associates v. S.I.K. Sales Corp. · filed 2004-02-17(a)(1) and (5)

The motion court properly concluded that it is not clear as a matter of law that the moving defendants signed the subject sales repayment agreement, pursuant to which plaintiffs allege they are jointly and severally bound, only on the corporate defendant’s behalf and not in their individual capacities. Accordingly, their motion to dismiss the complaint as against them pursuant to CPLR 3211 (a) (1) and (5) was properly denied (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211 permits dismissal for documentary evidence, a time-barred claim, or failure to state a cause of action, subject to the standards the court applies.

Fils-Aime v. Ryder TRS, Inc. · filed 2006-01-11(a)(1), (a)(5), and (a)(7)

Accordingly, under the generous standards applicable to a motion to dismiss a complaint for failure to state a cause of action, the first two causes of action cannot be dismissed (CPLR 3211 [a] [7]; ...). ... In order for Cornell to prevail on this preanswer motion to dismiss, the documentary evidence supplied must utterly refute the plaintiffs allegations and establish a defense as a matter of law (CPLR 3211 [a] [1]; ...).

CPLR 3211 permits a defendant to seek dismissal of a complaint on specified grounds, including failure to state a cause of action and failure to join a necessary party.

Jopson v. Maguire · filed 2006-01-17(a)(7), (a)(10)

It is therefore determined that pursuant to Butterbaugh, the complaint does state a cause of action alleging a violation of USERRA. ... The court therefore determines that plaintiffs have named the proper party defendant. ... Accordingly defendant’s motion to dismiss the action is hereby denied.

Section 3211 permits dismissal when documentary evidence conclusively establishes a defense or when the pleading fails to state a cause of action, subject to its stated review standards.

Goldfarb v. Schwartz · filed 2006-02-28(a)(1), (a)(7)

On a motion to dismiss pursuant to CPLR 3211, the amended complaint is to be afforded a liberal construction. ... “In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Leon v Martinez, supra at 88). ... “[T]he criterion is 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]). ... “Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Fast Track Funding Corp. v Perrone, 19 AD3d 362, 362 [2005] [internal quotation marks omitted]).

Section 3211(a)(5) allows dismissal of time-barred claims, section 3211(a)(7) allows dismissal for failure to state a cause of action, and section 3211(a)(4) permits relief when another action involving the same matter is pending, including consolidation where the actions share common questions of law and fact.

Gutman v. Klein · filed 2006-02-28(a)(4), (a)(5), (a)(7)

Consequently, the court properly denied those branches of the defendant’s motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), and to vacate the notice of pendency (see Klein v Gutman, 12 AD3d 348 [2004]). ... In addition, the court properly denied that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (4). However, pursuant to CPLR 3211 (a) (4), the court should have consolidated this action with another action entitled Klein v Gutman, pending in the Supreme Court, Kings County, under index No. 35890/01 (see Whitney v Whitney, 57 NY2d 731 [1982]; Benenson v SKEK Assoc., 293 AD2d 694 [2002]; Breiterman v Elmar Props., 123 AD2d 735 [1986]).

Section 3211(a) permits dismissal of a complaint on specified grounds when the pleading does not sufficiently state a cause of action.

Baystone Equities, Inc. v. Handel-Harbour · filed 2006-03-07(a)

Even if the allegations of fraud, conspiracy, aiding and abetting, breach of fiduciary duties and malpractice are accepted as true, affording all favorable inferences and construing the complaint liberally, plaintiff still did not sufficiently allege a cause of action for fraud and failed to allege any damages resulting from the claimed misrepresentation (see e.g. Polovy v Duncan, 269 AD2d 111 [2000]).

CPLR 3211 permits dismissal for failure to state a cause of action when the allegations, even accepted as true, do not establish a cause of action, and permits dismissal when documentary evidence flatly contradicts the allegations.

Hartman v. Morganstern · filed 2006-04-04(a)(1), (a)(7)

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the allegations in the complaint must be accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Such a motion should be granted only where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action (see Cayuga Partners v 150 Grand, 305 AD2d 527 [2003]). Indeed, the standard is not whether the plaintiff has stated a cause of action, but whether the plaintiff has a cause of action (id.). The court should “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, supra at 87-88). ... However, “[i]t is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she [or he] has stated one” (Meyer v Guinta, 262 AD2d 463, 464 [1999]; see Ahmed v Getty Petroleum Mktg., Inc., 12 AD3d 385, 385-386 [2004]). ... However, in support of their motion to dismiss this cause of action pursuant to CPLR 3211 (a) (1), the defendants submitted the transcript of the plaintiffs sentencing hearing, at which the federal judge stated that she would impose the same sentence even if it would result in the plaintiff spending additional time in prison. Thus, the documentary evidence flatly contradicts the plaintiffs allegation that, but for the defendants’ alleged failure, he would not have spent the additional month in prison.

CPLR 3211(a)(1), (5), and (7) authorize dismissal of causes of action on the specified grounds.

DuBois v. Brookdale University Hospital & Medical Center · filed 2006-05-16(a)(1), (5), and (7)

Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (1), (5), and (7) to dismiss the first and second causes of action alleging discrimination and retaliation in violation of Executive Law § 296 and 42 USC § 1981, respectively.

Section 3211(a)(5) permits dismissal of claims barred by the statute of limitations, and section 3211(a)(7) permits dismissal for failure to state a cause of action.

Ozelkan v. Tyree Bros. Environmental Services, Inc. · filed 2006-05-23(a)(5), (a)(7)

Thus, the court properly granted that branch of the motion of the defendants Tyree Brothers Environmental Services, Inc., William Tyree, and Steven Tyree (hereinafter the Tyree defendants) which was to dismiss those claims pursuant to CPLR 3211 (a) (5), as the plaintiff commenced this action on or about May 10, 2004. ... In light of the particularity required in pleading such causes of action (see CPLR 3016 [b]), the Supreme Court properly dismissed the claims based upon fraud, misrepresentation, concealment, and breach of fiduciaiy duty (see CPLR 3211 [a] [7]; Colello v Colello, 9 AD3d 855, 859 [2004] [to establish a claim for breach of a fiduciary duty with respect to execution of agreement, plaintiff must establish existence of fiduciary relationship, misconduct by defendant, and that misconduct induced plaintiff to engage in the transaction in question, directly causing the loss about which plaintiff complains]).

CPLR 3211(a)(5) permits dismissal of claims barred by a limitations period, and CPLR 3211(a)(7) permits dismissal for failure to state a cause of action.

Marcy Housing Tenants Ass'n v. City of New York · filed 2006-09-26(a)(5), (a)(7)

Similarly, the Supreme Court properly granted that branch of the City defendants’ cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint and petition in matter No. 2. ... Thus, those causes of action were also governed by a four-month limitations period (see CPLR 217 [1]; Stop-The-Barge v Cahill, supra; Matter of Young v Board of Trustees of Vil. of Blasdell, supra; Matter of Village of Westbury v Department of Transp. of State of N.Y., supra; Matter of Save the Pine Bush v City of Albany, supra; Matter of Jones v Amicone, supra; Matter of Cohen v State of New York, supra; Matter of Throggs Neck Resident Council v Cahill, supra; Clempner v Town of Southold, supra). The Supreme Court also properly granted that branch of the City defendants’ cross motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action sounding in public nuisance because the neighbors failed to allege that as a result of the garage’s operation, they would suffer a type of harm that was different from the type of harm that other members of the community would suffer (see Pearlman v Simons, 276 AD2d 762, 763 [2000]; Queens County Bus. Alliance v New York Racing Assn., 98 AD2d 743, 744 [1983]).

Section 3211(a)(5) permits dismissal when a claim is barred by collateral estoppel, and section 3211(a)(7) permits dismissal for failure to state a cause of action.

Tartaglione v. Pugliese · filed 2006-11-08(a)(5), (a)(7)

Therefore, the Supreme Court properly dismissed the plaintiffs first three causes of action on collateral estoppel grounds (see CPLR 3211 [a] [5]). The Supreme Court also properly dismissed the plaintiffs fourth cause of action, as it failed to state a cause of action (see CPLR 3211 [a] [7]; Labor Law § 740 [2] [a]; Civil Service Law § 75-b [2] [a]).

Section 3211(a)(5) permits dismissal of time-barred claims, and section 3211(a)(7) permits dismissal for failure to state a cause of action.

Sone v. Park · filed 2006-11-28(a)(5) and (a)(7)

The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7). The allegations contained in the complaint either are time-barred (see CPLR 3211 [a] [5]; 215 [3]; Frederick v Fried, 10 AD3d 444, 445 [2004]; Kwarren v American Airlines, 303 AD2d 722 [2003]) or fail to state a cause of action (see CPLR 3211 [a] [7]).

CPLR 3211 permits dismissal for lack of capacity to sue, a statute of limitations bar, or failure to state a cause of action, and allegations under paragraph (a)(7) are viewed in the light most favorable to the plaintiff.

Ponnambalam v. Sivaprakasapillai · filed 2006-12-12(a)(3), (a)(5), and (a)(7)

In the order entered May 27, 2005 the Supreme Court properly granted that branch of the family defendants’ motion which was to dismiss the second cause of action in the complaint pursuant to CPLR 3211 (a) (3). ... In the order entered May 27, 2005 the Supreme Court properly denied that branch of the family defendants’ motion which was to dismiss the first cause of action pursuant to CPLR 3211 (a) (5). ... Viewing the allegations in the light most favorable to the Ponnambalams, as the court must on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Peters v Accurate Bldg. Inspectors Div. of Ubell Enters., Inc., 29 AD3d 972, 973 [2006]; Cruz v McAneney, 31 AD3d 54, 55 [2006]), they alleged sufficient facts to warrant such relief (see Laney v Siewert, 26 AD3d 194 [2006]; Lang v Lang, 270 AD2d 463, 464 [2000]; Edelstein v Lieb, 205 AD2d 491, 493 [1994]; Johnson v Depew, 33 AD2d 645 [1969]; Moran v Thomas, 280 App Div 1037 [1952]; Perrin v Harrington, 146 App Div 292, 296 [1911]; see generally Simonds v Simonds, 45 NY2d 233 [1978]; Sharp v Kosmalski, 40 NY2d 119 [1976]).

Section 3211(a)(5) permits dismissal based on a discharge in bankruptcy, but does not require dismissal when the action is maintained to pursue recovery from a liability insurer.

Pomerantz v. In-Stride, Inc. · filed 2007-04-03(a)(5)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was, in effect, pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against the defendant In-Stride, Inc., on the ground of discharge in bankruptcy is denied.

Section 3211(a)(1) provides a basis to dismiss claims, while section 3211(a)(7) applies when a cause of action fails to state a claim.

M.H. Kane Construction Corp. v. URS Corp. Group Consultants · filed 2007-07-24(a)(1), (a)(7)

Therefore, the plaintiffs claims are subject to the dispute resolution provisions, which preclude the courts from considering the merits of the first and second causes of action (see Dazco Heating & A.C. Corp. v C.B.C. Indus., 225 AD2d 578, 579 [1996]; Atlas Drywall Corp. v District Council of N.Y. City & Vicinity of United Bhd. of Carpenters & Joiners of Am., 177 AD2d 612 [1991]). Accordingly, the first and second causes of action were properly dismissed pursuant to CPLR 3211 (a) (1). ... The plaintiffs third cause of action fails to state a cause of action for reformation, on the ground of mistake, of a stipulation of discontinuance executed by the parties in an action entitled Allied Bldg. Prod. Corp. v Empire Constr. Designs, LLC, commenced in the Supreme Court, Queens County, under index No. 10493/02 (see CPLR 3211 [a] [7]; Matthews v Castro, 35 AD3d 403 [2006]; G&S Clam Bar v Melillo, 302 AD2d 492 [2003]; Karapetyan v Underwood, 287 AD2d 547 [2001]; Royal York Realty v Ancona, 280 AD2d 593 [2001]), and the circumstances presented do not warrant the exercise of this Court’s equity jurisdiction (see Hillcrest Realty Co. v Gottlieb, 234 AD2d 270 [1996]).

Section 3211(a)(1) and (7) permits dismissal of a complaint that is patently devoid of merit.

Zysk v. Kaufman, Borgeest & Ryan, LLP · filed 2008-07-01(a)(1), (a)(7)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, as the complaint was patently devoid of merit (see Sinrod v Stone, 20 AD3d 560 [2005]; Del Vecchio v Nelson, 300 AD2d 277 [2002]).

CPLR 3211(a)(1) requires documentary evidence that conclusively establishes a defense, while dismissal under (a)(7) is improper when the submitted evidence leaves a material allegation in dispute.

1911 Richmond Avenue Associates v. G.L.G. Capital · filed 2009-03-31(a)(1), (a)(7)

In order to demonstrate entitlement to dismissal of a complaint pursuant to CPLR 3211 (a) (1), the documentary evidence submitted must conclusively establish a defense to the asserted claims as a matter of law ... Here, the existence of a licensing agreement between Turner and the individually named defendants that was not executed by Turner fails to establish the absence of any relationship or agreement between Turner and GLG. ... The complaint also could not be dismissed pursuant to CPLR 3211 (a) (7), as the evidentiary material submitted by Turner did not demonstrate that the material fact alleged by the plaintiff in the complaint that GLG was acting as some type of representative of Turner was not true, or that there was no significant dispute regarding it (see Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570, 571 [2005]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense; under (a)(7), the court accepts the alleged facts as true and asks whether they fit a cognizable legal theory.

Hallman v. Kantor · filed 2010-04-20(a)(1) and (a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), if the documentary evidence submitted by the defendant “utterly refutes [the] plaintiff’s factual allegations” and conclusively establishes a defense to the asserted claims as a matter of law, the motion may be granted (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Further, on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must determine whether, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference, the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]). Applying these principles here, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.

CPLR 3211 (a) (2) and (5) permit dismissal when the plaintiff never files the papers needed to commence the action and the limitations period expires.

Reyes-Peralta v. Ngernak · filed 2010-10-22(a)(2), (a)(5)

The motion by the defendants pursuant to CPLR 3211 (a) (2), (5) and (10) to dismiss the complaint based upon plaintiffs failure to timely file a summons with notice or summons and complaint (motion sequence No. 005) is granted pursuant to CPLR 3211 (a) (2) and (5).

A court errs by treating a CPLR 3211 motion as an (a)(7) pleading challenge when the movant did not raise that ground.

In re Tognino · filed 2011-09-27(a)(7)

The Surrogate’s Court erred in treating that branch of the respondents’ motion as one pursuant to CPLR 3211 (a) (7) to dismiss the petition.

Section 3211 does not permit dismissal based on assumptions about a transaction’s economic and commercial background when deciding a motion addressed to the pleadings.

ERC 16W Ltd. Partnership v. Xanadu Mezz Holdings LLC · filed 2012-05-08

Initially, it should be noted that this appeal arises from a motion addressed to the pleadings, not one for summary judgment; CPLR 3211 gives no warrant for dismissing a complaint based on a transaction’s economic and commercial background even if such conditions are attested by evidence in the record, which they are not here.

Under CPLR 3211(a)(1), documentary evidence must conclusively establish a defense to warrant dismissal; under (a)(7), sufficient allegations in an article 78 petition defeat dismissal.

Oddone v. Suffolk County Police Department · filed 2012-06-06(a)(1), (a)(7)

Accordingly, the respondents failed to conclusively establish as a matter of law a defense to the petition, and that branch of the respondents’ motion which was pursuant to CPLR 3211 (a) (1) to dismiss the petition should have been denied ... Accordingly, that branch of the respondents’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the petition should have been denied.

CPLR 3211(a)(1) requires documentary evidence to utterly refute the complaint’s factual allegations and conclusively establish a defense; under (a)(7), a breach of contract claim survives when the complaint sufficiently states that cause of action.

Americredit Financial Services, Inc. v. Decoteau · filed 2013-02-20(a)(1), (a)(7)

The defendant was not entitled to dismissal pursuant to CPLR 3211 (a) (1) of the cause of action to recover damages for breach of contract since he failed to utterly refute the plaintiffs factual allegations and conclusively establish as a matter of law a defense to that cause of action (see Goshen v Mutual Life Ins. Co. of N.Y. 98 NY2d 314, 326 [2002]). Further, the defendant was not entitled to dismissal of that cause of action pursuant to CPLR 3211 (a) (7), since the allegations in the complaint were sufficient to state a cause of action for breach of contract.

A statute-of-frauds challenge to a complaint is considered under CPLR 3211(a)(7) when the cited grounds in (a)(3) and (a)(10) do not apply.

CR Best Road, LLC v. Camps Mogen Avraham, Heller, Sternberg, Inc. · filed 2013-02-28(a)(7)

Since CPLR 3211 (a) (3) and (10) do not apply to defendants’ first argument, we consider it under CPLR 3211 (a) (7).

Section 3211(a)(1) requires qualifying documentary evidence for dismissal, while dismissal under section 3211(a)(7) was unwarranted where the evidence neither disproved a material allegation nor eliminated a significant factual dispute.

Approved Oil Co. of Brooklyn, Inc. v. Realty · filed 2013-11-06(a)(1), (a)(7)

The Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint. The evidence relied upon by the defendants was not “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Pasquaretto v Long Is. Univ., 106 AD3d 794, 795 [2013]; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Jones v Rochdale Vil., Inc., 96 AD3d 1014, 1017 [2012]). Moreover, dismissal was not warranted pursuant to CPLR 3211 (a) (7), since the evidence did not show that any material fact alleged by the plaintiff was not a fact at all or that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574 [2013]; Matter of White Plains Plaza Realty, LLC v Cappelli Enters., Inc., 108 AD3d 634, 636 [2013]).

Section 3211(a)(8) permits dismissal for improper service, and section 3211(a)(5) permits dismissal when the claim is barred by the statute of limitations.

Blair v. Meth · filed 2013-12-18(a)(8), (a)(5)

The Supreme Court should have granted the moving defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them. The moving defendants were not properly served with process, as the summons was only mailed to them (see CPLR 308, 311, 3211 [a] [8]; Business Corporation Law §§ 306, 307). ... Accordingly, the complaint insofar as asserted against the moving defendants was barred by the statute of limitations (see ) CPLR 3211 [a] [5]).

Dismissal under CPLR 3211(a)(1) requires the defendant to conclusively establish a defense as a matter of law.

Fuller v. Collins · filed 2014-02-19(a)(1)

Furthermore, the defendant was not entitled to dismissal pursuant to CPLR 3211 (a) (1) of the cause of action to recover damages for breach of contract, since he failed to conclusively establish as a matter of law a defense to that cause of action (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Americredit Fin. Servs., Inc. v Decoteau, 103 AD3d 761, 763 [2013]).

Section 3211(a)(1) and (7) permits dismissal when documentary evidence and the facts alleged show that the complaint's claims cannot succeed.

Towbin v. Towbin · filed 2014-05-27(a)(1) and (7)

The motion court correctly granted defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), finding that documentary evidence and the facts alleged in the complaint demonstrated that there had not been a completed gift to the trust.

CPLR 3211(a)(1) and (7) do not permit dismissal when the defendants’ submissions fail to conclusively establish that the plaintiff has no cause of action.

Winer v. Valentino · filed 2014-10-16(a)(1), (a)(7)

Accordingly, Supreme Court erred in dismissing plaintiffs claims against Valentino pursuant to CPLR 3211 (a) (1) and (7).

A motion to dismiss under CPLR 3211(a)(1) may be granted when the defendant shows it is separate from the contracting party and the plaintiff fails to sufficiently allege alter ego liability.

Board of Managers of the Gansevoort Condominium v. 325 West 13th, LLC · filed 2014-10-23(a)(1)

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 29, 2013, which denied Petro Real Estate Development Corporation’s motion to dismiss the complaint as against it pursuant to CPLR 3211 (a) (1), unanimously reversed, on the law, without costs, and the motion granted. ... Defendant Petro made a prima facie showing that it was not liable for plaintiff’s contract claims because it is a separate entity from the sponsor and was not a signatory to the condominium offering plan, declaration or unit purchase agreements. In opposition, plaintiff failed to sufficiently allege that defendant was an alter ego of the sponsor.

Section 3211(a)(1) and (7) do not permit dismissal of a contract claim for lack of an agreement when a written agreement covering the disputed period has been discovered.

New York State Workers' Compensation Board v. Marsh U.S.A., Inc. · filed 2015-03-05(a)(1), (a)(7)

In light of this information, dismissal of these claims for lack of an agreement is improper (see CPLR 3211 [a] [1], [7]).

CPLR 3211(a)(1) and (7) permit dismissal when documentary evidence utterly refutes the allegations or the complaint fails to state a cause of action.

Fagbuyi v. Accredited Home Lenders, Inc. · filed 2016-06-22(a)(1), (a)(7)

Further, the allegations in the second amended complaint insofar as asserted against U.S. Bank were either utterly refuted by documentary evidence, or failed to state a cause of action (see CPLR 3211 [a] [1], [7]; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]; Barker v Amorini, 121 AD3d 823, 824 [2014]).

Under Section 3211(a)(1) and (7), a legal malpractice complaint survives dismissal when the allegations adequately plead a claim and the record does not conclusively establish a defense as a matter of law.

Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP · filed 2017-05-04(a)(1), (a)(7)

These allegations are sufficient to survive a CPLR 3211 (a) (1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]) and plaintiff has adequately pleaded a claim for legal malpractice (see Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

Section 3211(a)(7) permits dismissal only when the plaintiff has no viable cause of action, while (a)(1) requires documentary evidence that utterly refutes the allegations and conclusively establishes a defense.

CS Empire Realty, LLC v. Hussain · filed 2017-05-24(a)(1), (a)(7)

Here, the Supreme Court properly concluded that, even considering the documentary submissions of the sellers, the broker has a cause of action to recover a broker’s commission on the ground that the sellers wrongfully or arbitrarily prevented the completion of the deal ... (see generally CPLR 3211 [a] [7]). Moreover, contrary to the sellers’ contention, the documentary evidence submitted in support of their motion did not utterly refute these allegations and thereby conclusively establish a defense as a matter of law (see generally CPLR 3211 [a] [1]).

When evidence shows that the requested relief is no longer available, dismissal is proper under CPLR 3211(a)(7) rather than (a)(1).

Smalls v. St. John's Episcopal Hospital · filed 2017-07-12(a)(7)

Here, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the cause of action alleging a violation of Public Health Law § 18, although the dismissal should have been pursuant to CPLR 3211 (a) (7) and not CPLR 3211 (a) (1).

CPLR 3211(a)(7) applies to a motion to dismiss based on qualified immunity or insufficient factual allegations.

Matter of Haberman v. Zoning Bd. of Appeals of the City of Long Beach · filed 2017-07-14(a)(7)

The authority under which the individual defendants sought dismissal of the sixth cause of action was CPLR 3211 (a) (7). That was the applicable statutory provision, as stated in the defendants’ original notice of motion to dismiss, regardless of whether dismissal was sought on the ground of qualified immunity or on the ground of insufficiency of the facts alleged (see Weinstock v Sanders, 144 AD3d 1019 [2016]; 24 Franklin Ave. R.E. Corp. v Cannella, 139 AD3d 717 [2016]).

A court may consider dismissal grounds argued in the moving papers even when the motion does not expressly invoke the applicable paragraphs of CPLR 3211.

Residential Board of Managers of Platinum v. 46th Street Development, LLC · filed 2017-10-03(a)(1), (a)(7)

While it would have been better practice for V.A.L. to have explicitly made its motion pursuant to CPLR 3211 (a) (1) and/or (7) in addition to paragraph (5), it did argue in its moving papers that its contract cannot reasonably be construed to require it to indemnify second third-party plaintiff. Accordingly, we will consider this contention, and we find it unavailing.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, and section 3211(a)(7) permits dismissal for failure to state a cognizable claim.

Chenkin v. Public Adm'r of N.Y. County · filed 2018-07-03(a)(1), (a)(7)

The complaint was correctly dismissed for failure to state a cognizable claim (CPLR 3211[a][7]); see generally Braddock v Braddock , 60 AD3d 84, 86 [1st Dept 2009]) and because the plain terms of the stipulation refute plaintiff's allegations and conclusively provide a defense as a matter of law (CPLR 3211[a][1]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Under CPLR 3211(a)(1), documentary evidence must utterly refute the complaint's factual allegations and conclusively establish a defense; under CPLR 3211(a)(3), the defendant bears the prima facie burden to establish the plaintiff's lack of standing, while the plaintiff defeats the motion by raising a question of fact.

U.S. Bank N.A. v. Clement · filed 2018-07-11(a)(1), (a)(3)

Relief pursuant to CPLR 3211(a)(1) requires documentary evidence which utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo , 113 AD3d 587, 588). On a defendant's motion pursuant to CPLR 3211(a)(3) 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" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]; Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 719). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" ( Deutsche Bank Trust Co. Ams. v Vitellas , 131 AD3d 52, 60; see New York Community Bank v McClendon , 138 AD3d at 806).

Section 3211 permits dismissal based on documentary evidence that refutes the pleading or when the pleading fails to state a cause of action.

Sag Harbor Pooh, LLC v. Plaza Surf & Sport, Inc. · filed 2018-07-12(a)(1) and (a)(7)

To warrant the granting of a motion to dismiss based on documentary evidence ( see CPLR 3211 [a] [1]), the documentary evidence itself must refute the allegations in the petition ( see Goshen v Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 [2002]). ... "When a party moves to dismiss a [petition] pursuant to CPLR 3211 (a) (7), the standard [*2] is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Sokol v Leader , 74 AD3d 1180, 1180—1181 [2010]).

CPLR 3211 permits dismissal on specified grounds, including another pending action, res judicata, or failure to state a cause of action.

Matter of Papakonstadinou (Gozzer Corp.) · filed 2019-01-31(a)(4), (a)(5), and (a)(7)

Under CPLR 3211 (a) (4), a court has the discretion to dismiss an action or proceeding where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States."

Section 3211 permits dismissal for failure to state a cause of action or because the claim is time-barred.

Wilczak v. City of Niagara Falls · filed 2019-07-31(a)(7), (a)(5)

Defendant established that these causes of action should be dismissed for failure to state a cause of action pursuant to CPLR 3211 (a) (7). ... Assuming, arguendo, that defendant would be liable for the taking of the personal property ( see Matter of City of Utica [Suprunchik] , 169 AD3d 179, 182 [4th Dept 2019]), we agree with defendant that this cause of action was properly dismissed pursuant to General Municipal Law § 50-e (1) (a) because plaintiff failed to file a notice of claim ( see § 50-i [1] [a]) and pursuant to CPLR 3211 (a) (5) because the cause of action was time-barred.

A potentially valid contention does not warrant dismissal under CPLR 3211 when it was not raised below and lacks record support.

Wind Point Partners VII-A, L.P. v. Hoya Corp. · filed 2020-07-16

Plaintiff contends that Vision Ease (one of the companies sold to defendant) is a business-to-business operation and therefore cannot owe sales taxes. However, plaintiff did not argue this before Supreme Court, and it fails to provide any citations to the record supporting its contention. This may be a valid argument, but it does not warrant granting a CPLR 3211 motion.

Under CPLR 3211(a), dismissal is unwarranted when documentary evidence does not conclusively refute the allegations or establish that the claimant has no cause of action.

Matter of O'Hara v. Board of Educ., Yonkers City Sch. Dist. · filed 2021-10-20(a)(1), (a)(7)

Moreover, on the merits, the respondents were not entitled to dismissal of the third cause of action pursuant to CPLR 3211(a), since the documentary evidence neither utterly refutes the allegation that O'Riley's employment was terminated in retaliation in violation of Civil Service Law § 75-b, nor shows that she does not have a cause of action premised upon this basis ( see Lilley v Greene Cent. Sch. Dist. , 168 AD3d 1180, 1181).

Under CPLR 3211(a)(1) and (7), a legal malpractice claim survives dismissal when the complaint states a cause of action and the submitted documents do not utterly refute its factual allegations.

AmTrust N. Am., Inc. v. Pavloff · filed 2022-04-28(a)(1), (7)

The amended complaint states a cause of action for legal malpractice and the documents submitted do not utterly refute the factual allegations underlying that cause of action ( see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer , 8 NY3d 438, 442 [2007]; Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]; CPLR 3211[a][1], [7]).

CPLR 3211(a)(7) requires a complaint to be construed liberally in deciding whether it states a cause of action, while (a)(1) permits dismissal only when documentary evidence establishes a defense as a matter of law.

Gordon v. Murphy · filed 2023-02-03(a)(1), (a)(7)

Here, upon construing the third-party complaint liberally and according the sellers the benefit of every favorable inference, we conclude, contrary to the realtors' contentions, that the allegations of the third-party complaint sufficiently state causes of action for both breach of contract and negligence ( see CPLR 3211 [a] [7]; see generally 34-06 73, LLC v Seneca Ins. Co. , 39 NY3d 44, 52 [2022]; Pasternack v Laboratory Corp. of Am. Holdings , 27 NY3d 817, 825 [2016], rearg denied 28 NY3d 956 [2016]). We further conclude that the documentary evidence does not establish a defense to the third-party complaint as a matter of law ( see CPLR 3211 [a] [1]).

A motion to dismiss based on a release need not specifically cite CPLR 3211(a)(5) when it clearly raises the release defense.

O'Hara v. Magee · filed 2023-01-25(a)(5)

Contrary to the plaintiff's contention, the defendants' respective failure to move specifically pursuant to CPLR 3211(a)(5) on the basis of the release does not warrant the denial of those branches of their separate motions on procedural grounds. Although CPLR 3211(a)(5)—which covers, inter alia, the defense of release—was not specifically asserted, the defendants clearly moved to dismiss the complaint based upon the defense of release ( see Miller v Brunner , 164 AD3d 1228, 1230-1231).

Section 3211 permits a motion to dismiss on res judicata or collateral estoppel grounds before a responsive pleading is due.

Cook v. Estate of Achzet · filed 2023-03-17(a)(5), (e)

As defendants correctly point out, the CPLR expressly permits a party to "move for judgment dismissing one or more causes of action . . . on the ground that . . . the cause of action may not be maintained because of . . . collateral estoppel [or] . . . res judicata" (CPLR 3211 [a] [5]). Such a motion may be made "[a]t any time before service of the responsive pleading is required" (CPLR 3211 [e]).

A motion to dismiss may raise a statute of limitations defense under CPLR 3211(a)(5) despite omitting that subsection from the notice of motion when the motion argues the defense and the omission causes no prejudice.

Fifth & Fifty-Fifth Residence Club Assn., Inc. v. Vistana Signature Experiences, Inc. · filed 2023-06-22(a)(5)

Even though defendants' notice of motion did not specify that they sought dismissal pursuant to 3211(a)(5), their arguments on the motion expressly argued application of the statute of limitations. Thus, the irregularity in the notice of motion did not result in any prejudice to plaintiff ( see Walker v Metro-North Commuter R.R. , 11 AD3d 339, 340 [1st Dept 2004]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the factual allegations and conclusively establishes a defense as a matter of law, while CPLR 3211(a)(5) permits dismissal when a cause of action cannot be maintained because of arbitration and award or release.

Huli Ma v. Chen · filed 2023-11-22(a)(1), (a)(5)

"'To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law' ( Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 599, quoting Gould v Decolator , 121 AD3d 845, 847). "A settlement agreement or release affecting a claim may be the basis for a CPLR 3211(a)(1) motion to dismiss where the terms are clear and unambiguous and conclusively dispose of the matter" ( Burgos v New York Presbyt. Hosp. , 155 AD3d at 599; see Miller v Brunner , 164 AD3d 1228, 1230). Furthermore, CPLR 3211(a)(5) allows a party to move for dismissal on the ground that a "cause of action may not be maintained because of arbitration and award [or] release" ( see Miller v Brunner , 164 AD3d at 1231).

Under CPLR 3211(a)(1) and (7), a complaint that adequately asserts a claim may proceed when documentary evidence does not conclusively establish a defense.

Seabiscuit Realty LLC v. Hayes · filed 2024-02-20(a)(1), (a)(7)

The motion court properly denied that branch of third-party defendant YSLW Teller LLC's cross-motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1) and (7). Although we agree that the cross-motion should not have been denied as moot, the motion court otherwise correctly determined that the third-party complaint adequately asserted a claim for adverse possession against YSLW that should proceed on the merits ( see Estate of Becker v Murtagh , 19 NY3d 75, 81 [2012]; see also RPAPL 501[2]). Contrary to YSLW's contention, the documentary evidence does not conclusively establish that YSLW was a bona fide purchaser without any notice ( see Andy Assoc. v Bankers Trust Co. , 49 NY2d 13, 20 , 24 [1979]).

Section 3211 does not permit dismissal for lack of prior written notice when establishing that lack requires proof outside the pleadings.

Acevedo v. City of New York · filed 2024-04-04(a)(7)

However, lack of prior written notice under Administrative Code §7-201 is not a valid ground for a motion to dismiss pursuant to CPLR §3211.

A request for dismissal under CPLR 3211(a)(7) cannot rest solely on counsel’s conclusory assertion that no contract existed.

Small v. Faulk · filed 2024-07-22(a)(7)

In any event, defendant's argument for dismissal is based only on conclusory statements of counsel that no contract existed between plaintiff or Sean Small on the one hand, and defendants on the other. That is not enough to warrant dismissal of the action.

Section 3211(a) permits a court to exercise discretion when deciding whether to direct dismissal of a complaint.

Caesar v. Metropolitan Transp. Auth. · filed 2024-07-17(a)

Under the circumstances of this case, it cannot be said that the Supreme Court improvidently exercised its discretion by declining to direct dismissal of the complaint pursuant to CPLR 3211(a) ( see Van Slyke v Hyatt , 46 NY at 264; Newburgh Commercial Dev. Corp. v Cappelletti , 216 AD3d at 981).

CPLR 3211(a) does not list an affirmative defense of retaliatory eviction as a ground for dismissal.

14 Elm NY LLC v. Ashby · filed 2024-09-18(a)

However, the second branch of respondents' motion, which seeks dismissal of this proceeding upon the affirmative defense of "retaliatory eviction", is not one of the enumerated bases for dismissal under CPLR 3211 (a).

Under CPLR 3211(a)(7), courts accept pleaded facts as true and draw favorable inferences when deciding whether a complaint states a cause of action; under (a)(8), dismissal is warranted if the named defendant is not a legal entity amenable to suit.

RKJW1 Doe v. Watchtower Bible & Tract Socy. of N.Y., Inc. · filed 2024-11-06(a)(7), (a)(8)

"Dismissal pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction is warranted where a named defendant is not a legal entity amenable to suit" ( Chestnut v United Methodist Church , _____ AD3d _____, _____, 2024 NY Slip Op 03726, *7 [2d Dept]; see CPLR 3211[a][8]). ... "On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" ( Sullivan v St. Ephrem R.C. Parish Church , 214 AD3d 751, 752, quoting Leon v Martinez , 84 NY2d 83, 87-88; see Davila v Orange County , 215 AD3d 632, 635).

A motion that mistakenly cites subsection (a)(7) may be treated as a subsection (a)(2) motion when it seeks dismissal for lack of subject matter jurisdiction.

Martinez v. Hanover Ins. Group · filed 2024-12-23(a)(2)

While defendant erroneously cites CPLR § 3211(a)(7) in his notice of motion, the Court will deem the motion as having been made under CPLR § 3211(a)(2).

Section 3211(a)(1) and (a)(7) provide grounds to dismiss a petition based on a non-amendable rent demand.

HP Tyler's Bronx HDFC, Inc. v. De La Cruz · filed 2025-01-24(a)(1), (a)(7)

Accordingly, dismissal is warranted under CPLR§ 3211(a)(1) based on docu- mentary evidence and under CPLR § 3211(a)(7) for failure to state a cause of action because the petition is based on a non-amendable,14-day rent demand.

A motion under CPLR 3211(a)(3) or (a)(5) is denied when the movant advances no specific ground for dismissal.

Agwanhu v. City of New York · filed 2025-03-17(a)(3), (a)(5)

Here, the City does not advance specific grounds for dismissal of Plaintiff's complaint pursuant to either CPLR §§ 3211(a)(3) or 3211(a)(5). Accordingly, the City's motion is denied as to both statutory provisions.

Under CPLR 3211(a)(1) and (a)(7), a declaratory judgment complaint survives dismissal when documentary evidence does not utterly refute its allegations and the complaint states a cause of action for declaratory relief.

Security Title Guar. Corp. of Baltimore v. Old Republic Natl. Title Ins. Co. · filed 2025-06-25(a)(1), (a)(7)

Contrary to the determination of the Supreme Court, the defendant did not demonstrate that the allegations of the complaint are utterly refuted by documentary evidence, nor did the defendant establish that the complaint fails to state a cause of action for declaratory relief ( see 88-18 Tropical Restaurante Corp. v Utica First Ins. Co. , 223 AD3d 772, 773-774; Gem-Quality Corp. v Colony Ins. Co. , 209 AD3d 986, 989).

CPLR 3211(a)(1) and (7) do not permit dismissal when the submitted evidence neither conclusively defeats the complaint’s material allegations nor establishes that an alleged material fact is false.

166-20 Union Turnpike, LLC v. Tavak, LLC · filed 2025-09-24(a)(1), (a)(7)

The defendants' submissions failed to utterly refute the material allegations of the complaint or to conclusively establish a defense as a matter of law and failed to establish that a material fact alleged by the plaintiff was not a fact at all. ... Under these circumstances, the Supreme Court erred in granting dismissal of the complaint insofar as asserted against the individual defendants pursuant to CPLR 3211(a)(1) and (7).

Section 3211(a)(1) and (7) does not permit dismissal when the documentary evidence fails to conclusively refute the complaint’s allegations and the submitted evidence does not establish that a material fact alleged by the plaintiff is false.

60 E. 196, LLC v. Tokio Mar. Specialty Ins. Co. · filed 2025-10-15(a)(1), (a)(7)

Contrary to Tokio Marine's contentions, it did not establish that the language of the policy utterly refuted the plaintiff's allegations that the alleged contamination "commenced" within the period alleged in the complaint ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Smith v Bank of N.Y. Mellon , 237 AD3d 1128) or show that a material fact as claimed by the plaintiff is not a fact at all ( see Guggenheimer v Ginzburg , 43 NY2d at 275; Cassese v SVJ Joralemon, LLC , 168 AD3d at 669). Accordingly, the Supreme Court properly denied Tokio Marine's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it.

CPLR 3211(e) requires a defendant to preserve improper service and res judicata as dismissal grounds by raising them in a motion or responsive pleading.

Kruglov v. Allstate Ins. Co. · filed 2026-04-16(e)

Before any of the moving defendants sought dismissal for lack of proper service or res judicata, Copart joined issue by serving an answer — which did not assert either of these grounds as an affirmative defense (see CPLR 3211 [e]).

A CPLR 3211(a) motion should not be granted for prematurity when the claims do not depend on a pending agency decision and the plaintiff alleges damages sustained when the action began.

Garendean Realty Owner, LLC v. 14 Lincoln Place, LLC · filed 2019-08-28(a)

Contrary to the Supreme Court's determination, the issues of whether Lincoln breached the contract and misrepresented the rent-regulated status of the apartment in question were not premature, as the viability of the plaintiff's causes of action was not contingent on the DHCR's ultimate resolution of the tenants' complaint. The plaintiff adequately alleged that it sustained damages at the time the action was commenced by virtue of having been fraudulently induced to enter into the contract of sale, and to pay an inflated purchase price for the building, as a result of the alleged misrepresentation ( see Rodin Props.-Shore Mall v Ullman , 253 AD2d 403, 404). ... Accordingly, the Supreme Court should have denied Lincoln's motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it.

A preanswer motion challenging a foreign corporation’s capacity to sue cannot succeed on the ground that it does business in New York when neither the complaint nor the moving papers shows that fact; the defendant must plead and prove it as a defense.

Dari-Delite, Inc. v. Priest & Baker, Inc. · filed 1966-04-27(a)(3)

It does not appear on the face of the complaint that the plaintiff does business in this State. Nor does this fact appear from the moving papers (CPLR 3211, subd. [c]). ... It follows that where it does not appear from the complaint or proofs that the foreign corporation is doing business in this State, and the defendants seek to avoid the cause of action alleged on the ground that such corporation was doing business in this State, they can do so only by pleading the new matter by way of defense and sustaining it by proof (Singer Sewing Mach. Co. v. Foster, supra; Ascher Corp. v. Horvath, supra; General Knitting Mills Y. Rudd Plastic Fabrics Corp., 212 N. Y. S. 2d 783).

Section 3211(a) permits dismissal when a plaintiff lacks legal capacity to sue.

Kovner v. Beer · filed 1972-02-17(a)

Motion by the individual defendants and cross motion by the corporate defendants for an order dismissing the complaint pursuant to CPLR 3211 (subd. [a]). ... Plaintiff’s allegations, that she has filed objections to the will in the Surrogate’s Court, New York County, and that she may become a distributee of half of the corporate stock or that the will may be set aside, fail to set forth any facts that this plaintiff has the legal capacity to sue or that she is the proper party in interest at this time. ... Accordingly, in light of the aforesaid and under the circumstances herein, the respective motions to dismiss the complaint are granted.

Under CPLR 3211(a), a foreign corporation's failure to allege that it is doing business in New York does not support dismissal when the pleadings and motion papers do not establish that fact; the issue is left to a pleaded defense and trial proof.

Atlantic-Corey Crane Service, Inc. v. Dory Leasing Corp. · filed 1979-09-14(a)(2), (a)(3), (a)(7)

Under the new CPLR 3211 (subd [a]) the presumption is carried over. It cannot be presumed that plaintiff was doing business in this State merely because it was a foreign corporation. (Dari-Delite v Priest & Baker, 50 Misc 2d 654.) ... The court cannot determine from all of the conflicting papers and pleadings herein, as a fact, that the plaintiff does business in the State under section 1314 of the Business Corporation Law. ... It follows, therefore, where it does not appear either from the complaint or the motion papers that the foreign corporation is doing business in this State, that the motion of the defendants for a CPLR 3211 (subd [a]) dismissal must be denied, the matter being left to new matter to be pleaded as a defense and sustained by trial proof. (See Dari-Delite v Priest & Baker, supra.)

Section 3211(7) cannot be used by motion to dismiss the merits of an Article 78 petition because the applicable process is provided by CPLR 7804.

Matter of Dipino v. Board of Fire Commrs. for the Dix Hills Fire Dept. · filed 2024-11-13(7)

Respondents also seek to dismiss the Article 78 petition pursuant to CPLR 3211 (7) on the ground that it fails to state a claim. However, this request for relief is improperly made by motion in an Article 78 proceeding, as it addresses the merits of the petition, the process for which is found in CPLR 7804 [d], [e], and [f].

A CPLR 3211(a) motion may support dismissal of an Article 78 petition when the parties provide a comprehensive record of established facts.

Matter of Khan v. Annucci · filed 2020-09-16(a)

We agree with the Supreme Court's determination granting the respondent's motion pursuant to CPLR 3211(a) to dismiss the petition and dismissing the petition upon the comprehensive record of established facts that the parties placed before it on the motion to dismiss ( see Matter of Altman v Suffolk County Dept. Of Civ. Serv. , 165 AD3d 921, 922).

Section 3211(c) does not apply to a pre-answer motion to dismiss an Article 78 proceeding; the court considers only the petition, its exhibits, and matters subject to judicial notice.

Levien v. Board of Zoning & Appeals · filed 1970-09-04(c)

To hold CPLB 3211 (subd. [c]) applicable and sanction the procedure here attempted by respondents would be to ignore the existence of CPLB 409 (subd. [b]) and to deprive petitioners of the right given them by CPLB 7804 (subd. [d]) to reply to new matter in the answer or dispute the accuracy of the return. The court will, therefore, in passing upon the motion to dismiss, consider only the petition and exhibits annexed to it and matters which must or may be judicially noticed.

Failure to state a cause of action under CPLR 3211(a)(7) is an objection in point of law that can support dismissal of an Article 78 petition.

Bynoe v. Riverside Church · filed 2006-08-22(a)(7)

That of course includes failure to state a cause of action, pursuant to CPLR 3211 (a) (7) (see Pauk v Board of Trustees of City Univ. of N.Y., 111 AD2d 17, 19 [1st Dept 1985], affd for reasons stated below 68 NY2d 702 [1986]).

On a motion to dismiss a declaratory judgment claim for failure to state a cause of action, the question is whether the claim presents a proper case for a declaration, not whether the claimant will receive a favorable one.

850 Third Ave. Owner, LLC v. Discovery Communications, LLC · filed 2022-05-12(a)(7)

The second and third counterclaims seek declarations. "[I]n declaratory judgment actions . . . on a motion to dismiss the complaint for failure to state a cause of action, the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him" ( Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1st Dept 1969]).

On a CPLR 3211 motion to dismiss a declaratory judgment action, the question is whether the court can properly issue a declaration, not whether the plaintiff will receive a favorable one.

Hallock v. State · filed 1972-06-01

Upon motions in declaratory judgment actions to dismiss pursuant to CPLR 3211, the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, not whether a plaintiff is entitled to a declaration favorable to him (Lanza v. Wagner, 11 N Y 2d 317, 334; Law Research Serv. v. Honeywell, Inc., 31 A D 2d 900).

On a CPLR 3211 motion in a declaratory judgment action, a court may decide the claim on the merits when the conceded facts and governing document are before it.

Gill v. Logan · filed 1978-04-17

On a motion pursuant to CPLR 3211, in such an action, it may be proper to proceed to a consideration of the sufficiency of the plaintiff’s claims on the merits (see Boryszewski v Brydges, 37 NY2d 361; St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317; Matter of Mandis v Gorski, 24 AD2d 181). Here the conceded facts are fully before the court and the only issues concern the interpretation of a written stipulation. Since the plaintiff’s claims rely entirely upon the stipulation, it is appropriate for this court to interpret that document rather than compel the parties to proceed with the unnecessary procedure of formally moving for summary judgment.

On a CPLR 3211(a) motion in a declaratory judgment action, a finding that the plaintiffs are not entitled to the declaration they seek calls for a declaration rather than dismissal of the complaint.

Long Island Lighting Co. v. Long Island Power Authority · filed 1988-02-04(a)

Although defendants’ motion is one for dismissal of the action under CPLR 3211 (a), the nature of the action is such that a determination that plaintiffs are not entitled to the declaration which they seek would not warrant a dismissal of the complaint but, rather, the court would be required to render a declaration as to the constitutionality of the statute under its scrutiny.

When a declaratory judgment action is resolved on a motion to dismiss, the court should declare for the successful party rather than dismiss the complaint.

W.T. Associates v. Glauber · filed 1989-08-24

We also note that, since this is an action for a declaratory judgment, the proper remedy is to declare for the successful party, not to dismiss the complaint.

On a CPLR 3211(a) motion in a declaratory judgment action, the court may deny dismissal and declare the parties’ rights instead.

Daniel J. G. v. Michael M. · filed 1991-04-16(a)

A motion is made by defendant to dismiss the complaint based upon various grounds under CPLR 3211 (a). Being a declaratory judgment action, declaration rather than dismissal would be appropriate (Sweeney v Cannon, 30 NY2d 633) and therefore dismissal, as such, is denied.

On a motion to dismiss a declaratory judgment complaint, a court should declare the parties’ rights rather than dismiss solely because the plaintiff is not entitled to the declaration sought.

Sobel v. Higgins · filed 1991-07-01(a)(7)

In such a case a complaint will not be dismissed merely because, on the face of the allegations, it appears that plaintiff is not entitled to the declaration of rights sought, rather the parties’ rights should be declared whatever they may be (supra).

On a motion to dismiss a declaratory judgment complaint, the court may decide the merits when resolution requires only statutory interpretation.

Washington County Sewer District No. 2 v. White · filed 1992-03-26(a)(7)

Because resolution of the issue presented in this case involves solely a question of statutory interpretation, it is our view that a determination may properly be made on the merits.

When a court resolves the merits of a declaratory judgment action on a motion to dismiss, it should issue a declaration rather than dismiss the complaint.

Bed N' Bath of Spring Valley, Inc. v. Spring Valley Partnership · filed 1992-07-23(a)(1)

The proper course, however, was not to dismiss the complaint but rather to issue a declaration in favor of defendant (see, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954).

When resolving a declaratory judgment action on a CPLR 3211 motion, the court should declare the parties’ rights rather than dismiss the complaint.

Public Service Mutual Insurance v. Jefferson Towers, Inc. · filed 1992-09-03

However, the court should have declared the rights of the parties under the policy rather than dismiss the complaint (Lanza v Wagner, 11 NY2d 317).

On a motion to dismiss under CPLR 3211(a)(7), a court may consider the merits of a declaratory judgment claim when the relevant facts are undisputed.

Town of Riverhead v. New York State Department of Environmental Conservation · filed 1993-05-10(a)(7)

Although the issues arose in the context of a motion to dismiss the complaint under CPLR 3211 (a) (7), we agree with the defendants that it is appropriate to scrutinize the merits of the Town’s claims. In an action for a declaratory judgment, where the relevant facts are not in dispute, the court may, on a motion to dismiss the complaint, consider the sufficiency of ... the plaintiff’s claims on the merits (see, Boryszewski v Brydges, 37 NY2d 361, 365; see also, Mindel v Gross, 132 AD2d 535).

In a declaratory judgment action, a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7) may be treated as a motion for a declaration in the movant’s favor.

Fekishazy v. Thomson · filed 1994-05-26(a)(7)

Because this is a declaratory judgment action, we treat TRW’s motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7) as a motion for a declaration in its favor (see, Siegel, NY Prac § 440, at 669 [2d ed]).

When a declaratory judgment claim fails on the merits, the court should declare the parties’ rights rather than dismiss the complaint under section 3211(a)(7).

Deleo v. Kaladjian · filed 1995-05-15(a)(7)

We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than the dismissal of the complaint (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

On a motion to dismiss a declaratory judgment complaint for legal insufficiency, the question is whether its allegations, taken as true, present a bona fide justiciable controversy, not whether the plaintiff will obtain the requested declaration.

Schulz v. New York State Legislature · filed 1997-07-03(a)

Petitioners’ seventh claim — that they have been deprived of their property without due process of law in violation of the 14th Amendment of the US Constitution — should not have been dismissed as a matter of law on a motion made pursuant to CPLR 3211 (a) and 7804 (f). In short, we find this claim to have been sufficiently pleaded. To this end, we note that upon a motion to dismiss a complaint for legal insufficiency in a declaratory judgment action, the test is not whether a party will succeed in getting a declaration of rights in accordance with a theory or contention advanced, but whether "[t]he allegations of the complaint * * * when considered as true, demonstrate the existence of a bona fide justiciable controversy which should be settled” (Sysco Corp. v Town of Hempstead, 133 AD2d 751, 752; see, Nasa Auto Supplies v 319 Main St. Corp., 133 AD2d 265; Metropolitan Package Store Assn. v Koch, 89 AD2d 317, mot to dismiss appeals granted 58 NY2d 1112, appeal dismissed 464 US 802).

When a declaratory judgment claim warrants a declaration, the court may deny a motion to dismiss and declare the parties’ rights even if the defendants sought only dismissal.

Rivera v. Russi · filed 1998-06-11(a)(7)

Although defendants moved solely for dismissal of the complaint and did not seek declaratory relief, the proper recourse under such circumstances is to deny the motion to dismiss and declare the rights of the parties (see, St. Lawrence Univ. v Trustees of Theological School of St. Lawrence Univ., 20 NY2d 317, 325).

When a complaint seeks a declaration, the court should declare the prevailing party’s rights rather than dismiss the complaint under CPLR 3211.

Real Bidder, L. L. C. v. St. Luke's-Roosevelt Hospital Center · filed 1998-10-15

Although in light of these conclusions we agree with Supreme Court that the action should be disposed of in defendants’ favor, inasmuch as the complaint seeks a declaration as to the validity of EEC’s exercise of its right of first refusal, it should not have been dismissed. The proper remedy when a declaration is sought is a declaration in favor of the prevailing party (Cohen v Employers Reins. Corp.,117 AD2d 435, 437).

On a preanswer motion to dismiss a declaratory judgment claim, the court asks whether the claim supports declaratory relief, not whether the plaintiff is entitled to a favorable declaration.

Tilcon New York, Inc. v. Town of Poughkeepsie · filed 2011-09-27(a)(7)

“A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration”

When no factual issues are raised in a declaratory judgment action, a CPLR 3211(a)(7) motion to dismiss may be treated as a motion for a declaration in the movant’s favor.

Miller-Jacobson v. City of Rochester · filed 2012-03-28(a)(7)

Since no factual issues are raised, defendant’s motion to dismiss is deemed to be a motion for a declaration in the City’s favor (see Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2d Dept 2011]).

In a declaratory judgment action, a CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action may be treated as a motion for a declaration in the movant’s favor.

NEW YORKERS FOR CONSTITUTIONAL FREE v. NEW YORK STATE SENATE · filed 2012-07-06(a)(7)

Inasmuch as “this is a declaratory judgment action, we treat [defendants’] motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7) as a motion for a declaration in [their] favor” (Fekishazy v Thomson, 204 AD2d 959, 962 n 2; see generally CPLR 2001).

When a complaint seeks declaratory relief, a court deciding a motion to dismiss should issue a declaration for the defendant if the claim fails on the merits.

EMPIRE STATE CHAPTER OF ASSOCIATED v. SMITH, M. PATRICIA · filed 2012-07-06(a)(7)

We therefore conclude that the judgment should be modified by reinstating the complaint insofar as declaratory relief was sought, and for the reasons that follow, we conclude that judgment should be granted in favor of defendants declaring that the 2008 amendments to the Wicks Law, to the extent that they are challenged by plaintiffs, are valid and constitutional.

When a declaratory judgment claim fails on a CPLR 3211 motion, the court should enter a declaration in the defendants’ favor rather than dismiss the claim.

Empire State Chapter of Associated Builders & Contractors, Inc. v. Smith · filed 2012-07-06

Accordingly, we conclude that the judgment should be modified by reinstating the complaint to the extent that declaratory relief was sought and by declaring that the 2008 amendments to the Wicks Law, insofar as they are challenged by plaintiffs, are valid and constitutional.

On a motion to dismiss a declaratory judgment claim, the question is whether the complaint states a cause of action for declaratory relief, not whether the plaintiff is entitled to a favorable declaration.

DiGiorgio v. 1109-1113 Manhattan Avenue Partners, LLC · filed 2013-01-16(a)(7)

A motion to dismiss the complaint in an action for a declaratory judgment “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see Rockland Light & Power Co. v City of New York, 289 NY 45, 51 [1942]).

A court should deny a motion to dismiss a declaratory judgment claim and enter a declaration when no factual dispute remains about the parties’ rights.

Minovici v. BV · filed 2013-08-14(a)(7)

Here, since there were no factual issues concerning the parties’ rights under the June 2008 employment contract, the Supreme Court should have denied those branches of the motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the seventh cause of action, and instead entered a judgment declaring that the defendants did not breach their obligations under the June 2008 employment contract.

On a motion to dismiss for failure to state a cause of action, a court should decide a properly pleaded declaratory judgment claim on the merits when no factual questions remain.

Oakwood Cemetery v. Village/Town of Mount Kisco · filed 2014-03-12(a)(7)

After correctly determining that the zoning provision at issue was not preempted by Not-For-Profit Corporation Law article 15, the Supreme Court should have reached the merits of the fourth cause of action rather than dismissing it.

On a motion to dismiss a properly pleaded declaratory judgment claim, a court should reach the merits when no factual questions remain.

Oakwood Cemetery v. Village/Town of Mount Kisco · filed 2014-03-12

A court should reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where ‘no questions of fact are presented [by the controversy]’ ” (Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011], quoting Hoffman v City of Syracuse, 2 NY2d 484, 487 [1957]).

Under CPLR 3211(a)(7), a declaratory judgment claim should not be dismissed merely because the plaintiff is not entitled to a favorable declaration.

Bregman v. East Ramapo Central School District · filed 2014-11-12(a)(7)

“ ‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration’ ” (Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011], quoting Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]).

Section 3211(a)(7) does not require dismissal of a declaratory judgment claim merely because the plaintiff may obtain full relief through another claim; relief may be pleaded in the alternative.

Traiman v. United States Life Ins. Co. in City of N.Y. · filed 2016-05-04(a)(7)

We further note that, although the plaintiff may be awarded full relief without resort to a declaratory judgment (see Matter of Greenwold, 236 AD2d 400 [1997]), relief may be pleaded in the alternative, and there is no basis at this juncture to dismiss the plaintiff’s cause of action for a declaratory judgment (see Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148 [2011]).

When a complaint seeks a declaration, the court must declare the parties’ rights rather than dismiss the complaint in its entirety under CPLR 3211(a)(7).

White v. Schneiderman · filed 2016-06-10(a)(7)

Plaintiffs sought a preliminary injunction enjoining enforcement of the Tax Law, and Supreme Court granted defendants’ cross motion pursuant to CPLR 3211 (a) (7) and dismissed the complaint. Because the complaint seeks a declaration, the court erred in dismissing the complaint in its entirety and in failing to declare the rights of the parties (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]).

On a motion to dismiss a claim for declaratory relief, the court generally asks whether the complaint states a claim for a declaration, rather than whether the plaintiff is entitled to a favorable declaration.

Pilgrim v. Pantorilla · filed 2016-11-16(a)(1)

A motion to dismiss a cause of action for declaratory relief generally “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC, 102 AD3d 725, 728 [2013]).

On a CPLR 3211(a)(7) motion, a court may decide the merits of a properly pleaded declaratory judgment claim when no factual questions remain and treat the motion as one seeking a declaration for the defendant.

Kaplan v. State · filed 2017-02-03(a)(7)

We note at the outset that, “[u]pon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented [by the controversy] . . . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” (North Oyster Bay Baymen’s Assn. v Town of Oyster Bay, 130 AD3d 885, 890 [2015] [internal quotation marks omitted]).

When a properly pleaded declaratory judgment claim presents no factual dispute, a CPLR 3211(a)(7) motion to dismiss is treated as a motion for a declaration in the moving party’s favor.

Arash Real Estate & Management Co. v. New York City Department of Consumer Affairs · filed 2017-03-29(a)(7)

Where, as here, a party moves pursuant to CPLR 3211 (a) (7) to dismiss a properly pleaded cause of action for a declaratory judgment, and “ ‘no questions of fact are presented [by the controversy]’ ” (Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011], quoting Hoffman v City of Syracuse, 2 NY2d 484, 487 [1957]), the motion to dismiss is to be “taken as a motion for a declaration in the [moving party’s] favor and treated accordingly” (Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d at 1150 [internal quotation marks omitted]; see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]).

A court errs by dismissing a declaratory judgment complaint on a CPLR 3211(a)(7) motion when the movant’s evidence does not conclusively defeat the claimed interest.

CITY OF BUFFALO v. BRAND-ON SERVICES, INC. · filed 2017-05-05(a)(7)

As a preliminary matter, we note that because this is a declaratory judgment action, the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 AD2d 1067, 1067; see generally Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954).

In a declaratory judgment action, dismissal of the complaint under CPLR 3211(a)(7) is improper when the parties’ rights remain to be determined.

In Re Arbitration Between City of Buffalo & Brand-On Services, Inc. · filed 2017-05-05(a)(7)

As a preliminary matter, we note that because this is a declaratory judgment action, the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 AD2d 1067, 1067 [1994]; see generally Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]).

A CPLR 3211 motion to dismiss in a declaratory judgment action may be treated as a motion for a declaration in the movant’s favor.

Riccobono v. State · filed 2017-06-21

Since Zurich’s cross motion to dismiss pursuant to CPLR 3211 is in the declaratory context it is treated here as a motion for a declaration in Zurich’s favor.