N.Y. C.P.L.R. § 3211

A motion to dismiss a declaratory judgment action should be denied when the court can declare the parties’ rights, even if the plaintiff is not entitled to the declaration sought.

Matter of Jacobs v. Cartalemi · filed 2017-12-06(a)

However, because this is an action for declaratory relief, instead of dismissing the action on the ground that Jacobs was not entitled to the relief he sought, “the proper procedure for the court is to deny the motion to dismiss the complaint (thereby retaining jurisdiction of the controversy) and then to declare the rights of the parties, whatever they may be” (St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d at 325; see Cahill v Regan, 5 NY2d at 298; Rockland Light & Power Co. v City of New York, 289 NY at 51).

A pre-answer motion to dismiss a declaratory judgment claim should be denied when unresolved factual issues prevent the court from determining the parties’ rights as a matter of law.

Guthart v. Nassau County · filed 2019-12-11(a)(7)

Here, the County failed to demonstrate the absence of all factual issues so that a determination as to the rights of the parties could be determined as a matter of law ( see DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC , 102 AD3d at 730; Village of Woodbury v Brach , 99 AD3d at 700; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie , 87 AD3d at 1151-1152). Accordingly, we disagree with the Supreme Court's determination to make the subject declaration at this stage of the proceedings, and that branch of the County's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint should have been denied.

On a motion to dismiss a declaratory judgment action under CPLR 3211(a)(7), the court should issue a declaration rather than merely dismiss the complaint when only legal questions remain.

Dodson v. Town Bd. of the Town of Rotterdam · filed 2020-02-20(a)(7)

When a party moves to dismiss the complaint in a declaratory judgment action, however, "'the court should make a declaration, even though the plaintiff is not entitled to the relief that he [or she] seeks.' A mere dismissal is not appropriate" (Siegel, NY Prac § 440 at 848 [6th ed 2018], quoting Hirsch v Lindor Realty Corp. , 63 NY2d 878, 881 [1984]). ... Accordingly, the complaint should not have been dismissed, and we shall review the merits of the issues presented and declare the rights of the parties ( see North Oyster Bay Baymen's Assn. v Town of Oyster Bay , 130 AD3d at 890; Spilka v Town of Inlet , 8 AD3d 812, 813 [2004]).

On a motion to dismiss a declaratory judgment complaint, the question is whether it states a cause of action, not whether the plaintiff is entitled to the requested declaration.

Great Homes Group, LLC v. GMAC Mtge., LLC · filed 2020-02-26(a)(7)

A motion to dismiss the complaint in a declaratory judgment action presents the question of whether a cause of action is stated, not whether the plaintiff is entitled to a favorable declaration ( see Matter of Jacobs v Cartalemi , 156 AD3d 635, 637).

CPLR 3211(a)(7) does not permit dismissal of a declaratory judgment complaint merely because the plaintiffs may not obtain a declaration in their favor.

Laundry Palace U, Inc. v. Nassau County · filed 2020-05-27(a)(7)

A complaint will not be dismissed pursuant to CPLR 3211(a)(7) merely because the plaintiffs may not be entitled to a declaration in their favor [*2]( see Rockland Light & Power Co. v City of New York , 289 NY at 51; Verity v Larkin , 18 AD2d at 842).

On a motion to dismiss a declaratory judgment claim for failure to state a cause of action, a court may reach the merits if the claim is properly pleaded and no factual questions remain.

Neuman v. City of New York · filed 2020-09-23(a)(7)

However, upon 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]'" ( Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie , 87 AD3d at 1150, quoting Hoffman v City of Syracuse , 2 NY2d 484, 487; see Minovici v Belkin BV , 109 AD3d 520, 524; DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC , 102 AD3d 725, 728).

In a declaratory judgment action presenting no factual questions, a motion to dismiss for failure to state a cause of action may be treated as a motion for a declaration in the defendant's favor.

Astoria Landing, Inc. v. New York City Council · filed 2020-09-30(a)(7)

Accordingly, the Supreme Court should have deemed the motion to be a motion for a declaration in the defendants' favor, and thereupon granted the motion.

On a CPLR 3211(a)(7) motion, a court that decides a declaratory judgment claim against the plaintiff should declare the parties' rights rather than dismiss the claim.

106 Spring St. Owner LLC v. Workspace, Inc. · filed 2020-11-24(a)(7)

Order, same court and Justice, entered on or about November 19, 2018, which granted defendants' motion to dismiss the amended complaint pursuant to CPLR [*2]3211(a)(7), unanimously modified, on the law, solely to declare that plaintiff was in breach of the proprietary lease as set forth below, and otherwise affirmed, without costs. ... Instead of dismissing the sixth cause of action, the court should have declared in defendants' favor ( see e.g. Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]).

On a motion to dismiss a declaratory judgment claim for failure to state a cause of action, a court may decide the merits when no factual questions are presented and treat the motion as one for a declaration in the defendant's favor.

Park Slope Auto Ctr., Inc. v. Papa · filed 2021-01-13(a)(7)

The courts may consider "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 [*3]questions of fact are presented [by the controversy]'" ( Matter of Tilcon, N.Y., Inc. v Town of Poughkeepsie , 87 AD3d 1148, 1150, quoting Hoffman v City of Syracuse , 2 NY2d 484, 487; see North Oyster Bay Baymen's Assn. v Town of Oyster Bay , 130 AD3d 885, 889). "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 at 890 [internal quotation marks omitted]).

On a motion to dismiss for failure to state a cause of action, a court may decide a properly pleaded declaratory judgment claim on the merits when no factual questions are presented and treat the motion as seeking a declaration for the defendant.

Trenton Bus. Assistance Corp. v. O'Connell · filed 2021-02-10(a)(7)

"[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 treated as one seeking a declaration in [the] defendant's favor and treated accordingly" ( Neuman v City of New York, 186 AD3d 1523, 1525 [citations and internal quotation marks omitted]). Applying these principles here, as a matter of law, the State defendants were entitled to a declaration in their favor with regard to the first and second causes of action, which alleged violation of the Equal Protection Clauses of the United States and New York Constitutions, respectively.

A court may treat a motion to dismiss a properly pleaded declaratory judgment claim as a request for a declaration in the defendant’s favor when no factual questions remain.

O'Donnell & Sons, Inc. v. New York State Dept. of Taxation & Fin. · filed 2021-04-28(a)(7)

"[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 treated as one seeking a declaration in [the] [*2]defendant's favor and treated accordingly" ( Neuman v City of New York , 186 AD3d 1523, 1525 [citations and internal quotation marks omitted]). Applying these principles here, as a matter of law, the defendants were entitled to a declaration in their favor that mortgages issued by New York State federal credit unions are not exempt from the imposition of the New York State mortgage recording tax.

On a motion to dismiss a declaratory judgment claim, the court should declare the parties’ rights rather than dismiss the claim when it can determine those rights.

Kadah v. Kadah · filed 2021-06-11

The court nonetheless erred in granting that part of the motion seeking dismissal of the declaratory judgment cause of action and cross claim rather than declaring the rights of the parties ( see Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals , 147 AD3d 1427, 1431-1432 [4th Dept 2017]).

On a motion to dismiss a declaratory judgment claim, a court may decide the merits when no factual questions remain and treat the motion as seeking a declaration for the defendant.

Mutual Aid Assn. of the Paid Fire Dept. of the City of Yonkers, N.Y., Inc. v. City of Yonkers · filed 2021-11-10(a)

"However, upon 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].

In a declaratory judgment action, section 3211(a)(7) permits judgment on the pleadings without a motion for summary judgment.

Matter of Kerri W.S. v. Zucker · filed 2021-12-23(a)(7)

In declaratory judgment actions, however, CPLR 3211 (a) (7) empowers a court to grant judgment on the pleadings notwithstanding the absence of a motion for summary judgment ( see Boryszewski v Brydges , 37 NY2d 361, 365 [1975]; St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ. , 20 NY2d 317, 325 [1967]).

A court may treat a motion to dismiss a properly pleaded declaratory judgment claim as a request for a declaration in the defendant’s favor when no factual questions remain.

Isnady v. Walden Preserv., L.P. · filed 2022-08-10(a)(7)

"[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 treated as one seeking a declaration in [the] defendant's favor and treated accordingly" ( Neuman v City of New York , 186 AD3d 1523, 1525 [citations and internal quotation marks omitted]; see O'Donnell & Sons, Inc. v New York State Dept. of Taxation & Fin. , 193 AD3d 1063, 1064-1065).

On a motion to dismiss for failure to state a cause of action, a court may treat a properly pleaded declaratory judgment claim as a request for a declaration in the defendant's favor when no factual questions remain.

Gem-Quality Corp. v. Colony Ins. Co. · filed 2022-10-26(a)(7)

"[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 treated as one seeking a declaration in [the] defendant's favor and treated accordingly" ( Neuman v City of New York , 186 AD3d 1523, 1525 [citations and internal quotation marks omitted]; see O'Donnell & Sons, Inc. v New York State Dept. of Taxation & Fin. , 193 AD3d 1063, 1064-1065).

A CPLR 3211(a)(7) motion to dismiss a properly pleaded declaratory judgment claim is treated as a motion for a declaration in the movant’s favor when no questions of fact are presented.

Matter of Incorporated Vil. of Freeport v. Curran · filed 2022-12-21(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, quoting Hoffman v City of Syracuse , 2 NY2d 484, 487), 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 Park Slope Auto Ctr., Inc. v Papa , 190 AD3d 754; Astoria Landing, Inc. v New York City Council , 186 AD3d 1593, 1595).

A court may treat a CPLR 3211(a)(7) motion against a declaratory judgment claim as seeking a declaration for the defendant when no factual issue remains.

Ciaccio v. Wright-Ciaccio · filed 2022-12-21(a)(7)

Accordingly, the Supreme Court properly determined that no issue of fact regarding ownership of the subject property was presented, and, in effect, treated that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action as one seeking a declaration in the defendant's favor, and properly granted that branch of the motion ( see Mutual Aid Assn. of the Paid Fire Dept. of the City of Yonkers, N.Y., Inc. v City of Yonkers , 199 AD3d 815).

On a CPLR 3211(a)(7) motion in a declaratory judgment action, when only legal questions remain, the court should treat the motion as seeking a declaration in the defendant's favor.

Kumar v. Franco · filed 2022-12-29(a)(7)

"Where there are no questions of fact and the only issues presented are questions of law or statutory interpretation, the motion to dismiss should be treated as one seeking a declaration in the defendant's favor and treated accordingly" ( id. [internal quotation marks, brackets and citations omitted]; see Sullivan v New York State Joint Commn. on Pub. Ethics , 207 AD3d 117, 124 [3d Dept 2022]).

On a pre-answer motion to dismiss a declaratory judgment claim for failure to state a cause of action, a court may reach the merits and declare the defendant's rights when no factual questions remain.

Matter of Schulz v. State of New York · filed 2023-05-11(a)(7)

"Upon [a pre-answer motion to dismiss a declaratory judgment 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[ and, u]nder 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" ( Sullivan v New York State Joint Commn. on Pub. Ethics , 207 AD3d 117, 124 [3d Dept 2022] [internal quotation marks and citations omitted]). Given that there are no questions of fact, the judgment will be modified by reversing the dismissal of the complaint and instead granting a declaration in favor of respondents that the challenged appropriations do not violate the NY Constitution.

On a motion to dismiss a declaratory judgment claim, a court may grant a declaration to the defendant when no factual questions remain and the plaintiff is not entitled to a favorable declaration.

Matter of 22-50 Jackson Ave. Assoc., L.P. v. County of Suffolk · filed 2023-05-17(a)

Here, since no questions of fact were presented by the first cause of action and the respondents/defendants demonstrated that Jackson was not entitled to a favorable declaration on the law, the Supreme Court should have deemed that branch of the motion which was to dismiss the first cause of action to be for a declaratory judgment in favor of the respondents/defendants, and thereupon granted it ( see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ. , 20 NY2d at 325; O'Donnell & Sons, Inc. v New York State Dept. of Taxation & Fin. , 193 AD3d at 1065).

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

Corsi v. Allen · filed 2023-07-28(a)(7)

As a preliminary matter, in this declaratory judgment action, we treat defendant's motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7) as a motion for a declaration in her favor ( see Matter of Kerri W.S. v Zucker , 202 AD3d 143, 153-155 [4th Dept 2021], lv dismissed 38 NY3d 1028 [2022]; New Yorkers for Constitutional Freedoms v New York State Senate , 98 AD3d 285, 288, 297 [4th Dept 2012], lv denied 19 NY3d 814 [2012]).

A court may treat a CPLR 3211(a)(7) motion to dismiss a declaratory judgment claim as a request for a declaration in the defendant's favor when no factual questions remain.

Prashad v. New York City Dept. of Hous. Preserv. & Dev. · filed 2023-09-13(a)(7)

"[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 treated as one seeking a declaration in [the] defendant's favor and treated accordingly" ( Neuman v City of New York , 186 AD3d 1523, 1525 [citations internal quotation marks omitted]).

On a motion to dismiss under CPLR 3211(a)(7), a court may decide a properly pleaded declaratory judgment claim on the merits when no questions of fact are presented and grant a declaration in the defendant's favor.

Jasopersaud v. Lewis · filed 2023-12-06(a)(7)

"[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 treated as one seeking a declaration in [the] defendant's favor and treated accordingly" ... Applying these principles here, the defendants are entitled to a declaration in their favor on the cause of action sounding in adverse possession.

A declaratory judgment claim survives a CPLR 3211(a) motion when the complaint states a claim for declaratory relief and factual issues remain unresolved.

88-18 Tropical Restaurante Corp. v. Utica First Ins. Co. · filed 2024-01-24(a)

Here, the complaint adequately set forth a cause of action for declaratory relief, and the insurer's submissions failed to dispel all factual issues regarding the merits of that cause of action ( see Skanska USA Bldg. Inc. v Harleysville Ins. Co. of N.Y. , 215 AD3d 464, 465; Moore v Ewing , 9 AD3d 484, 488). Accordingly, the Supreme Court properly denied dismissal of the cause of action for a declaratory judgment pursuant to CPLR 3211(a).

In a declaratory judgment action, a CPLR 3211(a)(7) dismissal motion may be treated as a request for a declaration in the defendant’s favor when no significant factual dispute remains.

Feldman v. Nassau Life Ins. Co. · filed 2024-02-21(a)(7)

Accordingly, the Supreme Court should have deemed the defendant's motion pursuant to CPLR 3211(a) to dismiss the amended complaint to be for a judgment declaring that the life insurance policy is no longer in full force and effect, and thereupon granted the motion ( see Matter of 22-50 Jackson Ave. Assoc., L.P. v County of Suffolk , 216 AD3d 943, 947; Minovici v Belkin BV , 109 AD3d 520, 524).

When a declaratory judgment claim presents only questions of law, the court should deny the motion to dismiss and declare the parties’ rights.

Matter of 16 Main St. Prop., LLC v. Village of Geneseo · filed 2024-03-15

However, inasmuch as "there are no questions of fact" with respect to petitioner's challenge to the definitions of family "and the only issues presented are questions of law or statutory interpretation" ( Kerri W.S. , 202 AD3d at 155 [internal quotation marks omitted]), the proper procedure for the court was to deny the motion in relevant part "in order to 'retain[ ] jurisdiction of the controversy,' and then immediately 'declare[ ] the rights of the parties, whatever they may be' " ( id. , quoting St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ. , 20 NY2d 317, 325 [1967]).

When a properly pleaded declaratory judgment claim presents no factual issue, a CPLR 3211(a)(7) motion to dismiss may be treated as a request for a declaration in the defendant's favor.

Greater Hudson Val. Council, Boy Scouts of Am. v. North Rockland Cent. Sch. Dist. · filed 2024-12-04(a)(7)

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as sought a declaratory judgment, and adding a provision thereto deeming that branch of the motion to be for a declaratory judgment in the defendant's favor, and thereupon granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment, inter alia, making the appropriate declaration.

A CPLR 3211(a)(7) motion to dismiss a declaratory judgment complaint should be granted, without issuing a declaration, when there is no justiciable controversy.

Parker v. Hilton · filed 2024-12-20(a)(7)

If there is no justiciable controversy, "the CPLR 3211 (a) (7) motion should be granted, the complaint dismissed, and no declaration issued" ( Kerri W.S. , 202 AD3d at 154). We conclude that plaintiff's allegations fail to "demonstrate the existence of a bona fide justiciable controversy" inasmuch as there is no "real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" ( Salvador , 162 AD3d at 1360 [internal quotation marks omitted]).

A motion to dismiss a declaratory judgment claim may be treated as a request for a declaration in the defendant's favor when no factual questions remain.

572 Walt Whitman Rd. Holdings, LLC v. Whitman Capital, LLC · filed 2025-04-16(a)(7)

Since no questions of fact are presented regarding whether the plaintiff has an easement by necessity, the Supreme Court should have deemed that branch of the defendants' motion which was to dismiss the first cause of action to be for a declaratory judgment in the defendants' favor on that cause of action and thereupon granted that branch of the motion.

On a motion to dismiss a declaratory judgment action challenging legislation, the court may assess the claim's sufficiency on the merits without further development of the record.

Glen Oaks Vil. Owners, Inc. v. City of New York · filed 2025-05-22(a)(7)

Initially, contrary to plaintiffs' argument, no additional development of the record is required for determination of this matter. A declaratory judgment action is "the appropriate vehicle for examination of the constitutionality of legislation," and "the court may properly proceed, on a motion to dismiss in an action for a declaratory judgment, to a consideration of the sufficiency of the plaintiff's claims on the merits" ( Boryszewski v Brydges , 37 NY2d 361, 365 [1975]).

In a declaratory judgment action, a CPLR 3211(a)(7) motion must be denied without a declaration when factual issues preclude a summary determination of the parties' rights.

PF Dev. Group, LLC v. Town of Brunswick · filed 2025-06-18(a)(7)

The second step in the analysis concerns "whether factual issues preclude a summary determination of the parties' rights" ( Matter of Kerri W.S. v Zucker , 202 AD3d at 154; see Dodson v Town Bd. of the Town of Rotterdam , 182 AD3d 109, 112 [3d Dept 2020]). If the answer to that question is yes, then the CPLR 3211 (a) (7) motion must be denied, without any declaration, and "the case continues on its ordinary course" ( Matter of Kerri W.S. v Zucker , 202 AD3d at 154-155; see Matter of Wir Assocs., LLC v Town of Mamakating , 157 AD3d 1040, 1045 [3d Dept 2018]; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie , 87 AD3d 1148 at 1151).

On a motion to dismiss a declaratory judgment claim under § 3211(a)(7), the question is whether the complaint presents a proper case for declaratory relief, not whether the plaintiff will receive a favorable declaration.

Nolles v. Chester Shores Homeowners Assn. · filed 2025-12-11(a)(7)

"It is well established that a declaratory judgment is a discretionary remedy, and the general rule in declaratory judgment actions is that 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 [or her]" ( County of Monroe v Clough Harbour & Assoc., LLP , 154 AD3d 1281, 1282 [4th Dept 2017] [internal quotation marks, brackets and citations omitted]).

In a declaratory judgment action, a CPLR 3211(a)(7) motion may be deemed a request for a declaration in the defendant's favor when the pleaded facts establish the defendant's entitlement to that declaration as a matter of law.

Cox v. First Citizens Bancshares, Inc. · filed 2026-04-22(a)(7)

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and adding a provision thereto deeming the cross-motion to be for a declaratory judgment in the defendant's favor, and thereupon granting the cross-motion; as so modified, the order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant's failure to respond to the plaintiffs' request to produce the chain of title for the subject mortgage loan does not entitle the plaintiffs to be released from the subject mortgage loan.

When no factual questions remain, a court may treat a motion to dismiss a declaratory judgment claim as a request for a declaration in the defendant’s favor.

Abruzzo Docg, Inc. v. Acceptance Indem. Ins. Co. · filed 2026-05-06(a)(7)

Here, since no questions of fact were presented by the first cause of action, for declaratory relief, and the defendants demonstrated that the plaintiffs were not entitled to a favorable declaration on the law, the Supreme Court should have deemed those branches of the defendants' respective motions which were to dismiss the first cause of action in the amended complaint insofar as asserted against each of them to be for a declaration in the defendants' favor, and thereupon granted those branches of the respective motions (see Matter of 22-50 Jackson Ave. Assoc., L.P. v County of Suffolk, 216 AD3d at 947).

Section 3211(a)(7) permits dismissal of a duplicative declaratory judgment claim when the plaintiff has an adequate alternative remedy.

Nationstar Mtge., LLC v. Ocwen Loan Servicing, LLC · filed 2021-05-11(a)(7)

Supreme Court also properly concluded that pursuant to CPLR 3211(a)(7) the declaratory judgment cause of action should be dismissed. The lack of a valid future damages claim renders the declaratory judgment claim dismissible as duplicative since it is "unnecessary and inappropriate when [Nationstar] has an adequate, alternative remedy in another form of action" ( Apple Records, Inc. v Capitol Records, Inc. , 137 AD2d 50, 54 [1st Dept 1988], NMC Residual Ownership L.L.C. v U.S. Bank N.A. , 153 AD3d 284, 291 [1st Dept 2017]).

Under CPLR 3211(a)(2), the court asks whether the initial invocation of subject matter jurisdiction is effective on its face.

Silverman v. Abdul · filed 1976-02-05(a)(2)

The inquiry of the court under CPLR 3211 (subd [a], par 2) is whether the initial invocation of the jurisdiction of the court over the subject matter is on its face effective.

A motion asserting that sovereign immunity deprives the court of subject matter jurisdiction is treated as a timely motion under CPLR 3211(a)(2).

Marine Midland Bank v. Margal Enterprises, Inc. · filed 1977-05-03(a)(2)

The defendant, United States of America, has moved to dismiss the action against itself on the ground that the court has no jurisdiction of the subject matter (CPLR, 3211, subd [a], par 2) because the United States has not waived sovereign immunity so as to give State courts jurisdiction to terminate its rights under a lease. Although the motion in some aspects appears to be similar to a motion directed to the question of jurisdiction over the person of the defendant (CPLR 3211, subd [a], par 8), we feel it is properly considered as a challenge to subject matter jurisdiction and thus timely made.

Section 3211(e) permits a party or the court to raise lack of subject matter jurisdiction at any stage because that defense cannot be waived.

Justice v. State of New York Commission on Judicial Conduct · filed 1978-10-05(e)

As respondent-defendant states it is well settled that the defense of lack of subject matter jurisdiction cannot be waived and that it may be raised by a party or by the court on its own motions at any stage of the action (CPLR 3211, subd [e]; Eckert v Eckert, 34 AD2d 684; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 3211.09, 3211.10; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211, p 17).

Section 3211(a)(2) permits dismissal when the court lacks subject matter jurisdiction.

Rubin v. Rubin · filed 1980-03-06(a)(2)

Thus, the Usher rationale that lack of residency leaves a void in subject matter jurisdiction is no longer valid, and any defect in plaintiff’s claimed New York residency does not bar the maintenance of this action.

A motion to dismiss for lack of subject matter jurisdiction may be made at any time.

Jefferson v. Downs · filed 1981-02-13(a)(2), (e)

Although plaintiff strenuously argues that defendant’s jurisdictional objection is untimely, the court finds that defendant has not waived this objection, since a motion to dismiss for lack of subject matter jurisdiction may be made at any time (CPLR 3211, subd [a], par 2; subd [e]).

CPLR 3211(a)(2) does not provide a ground to dismiss a divorce action for failure to meet residency requirements, which concern the cause of action rather than subject matter jurisdiction.

Howes v. Howes · filed 1981-03-19(a)(2)

The requirements of section 230 of the Domestic Relations Law go only to the substance of the cause of action and not to the competence of the court to entertain the cause of action in the first instance (Lacks v Lacks, supra, p 73). It would appear, therefore, that strictly construed, a motion under CPLR 3211 (subd [a], par 2) would not lie; however, as the court went on to say in the Lacks case (supra, p 74): “A statement that a court lacks ‘jurisdiction’ to decide a case may, in reality, mean that elements of a cause of action are absent”.

A motion to dismiss for lack of subject matter jurisdiction may be entertained after trial because that defense cannot be waived.

Young v. Sheet Metal Workers' International Ass'n Production Workers Welfare Fund · filed 1981-12-04(a)(2)

As the defense of “lack of subject matter jurisdiction” may not be waived, this court agreed to entertain such motion.

Section 3211(e) places no time limit on a motion to dismiss for lack of subject matter jurisdiction.

Mebert v. Mebert · filed 1981-11-10(e)

There is no time limit, however, on motions to dismiss based on a lack of subject matter jurisdiction (CPLR 3211, subd [e]) and a challenge to personal jurisdiction is preserved if an objection to it is made in the motion to dismiss or in a responsive pleading, whichever is made first.

CPLR 3211 permits a court to dismiss a claim or counterclaim on its own motion when it finds that it lacks subject matter jurisdiction.

Henry v. Green · filed 1984-06-09

Under CPLR 3211, an action or a proceeding may be dismissed by reason of the fact that the court does not have jurisdiction of the subject matter of the cause of action. This would include a counterclaim as well as a petitioner’s, or plaintiff’s, cause of action. Under this authority to dismiss for lack of subject matter jurisdiction, if the court itself notices a lack of such jurisdiction, it may dismiss on its own motion, regardless of the means whereby the objection to the jurisdiction comes to its attention and whether or not any motion has been made for dismissal.

Section 3211(a)(2) is the proper vehicle for dismissing a nonripe controversy.

Nys Law Enforcement Employees v. Cuomo · filed 1984-12-18(a)(2)

CPLR 3211 (subd [a], par 2) is the proper vehicle to dismiss a nonripe controversy, even though the conceptual focus of the ripeness doctrine is upon the maturity of the claim asserted.

Section 3211(a) permits a motion to dismiss for lack of subject matter jurisdiction; a defective notice may justify dismissal without depriving the court of jurisdiction.

Jewish Child Care Ass'n v. City of New York · filed 1985-08-23(a)

CPLR 3211 (a) includes lack of subject matter jurisdiction as a ground upon which a party may move to dismiss a cause of action. ... If there is a defect of notice, such defect may justify dismissal of the petition for that reason but not because this court lacks subject matter jurisdiction.

Subject matter jurisdiction objections are not waived, so a court may consider a sovereign immunity question that was not previously addressed.

Eagle Insurance v. State · filed 1986-02-26(a)(2); (e)

As subject matter jurisdiction may not be waived (CPLR 3211 [a] [2]; [e]), and since sovereign immunity was never previously considered by either court, I may examine this question.

CPLR 3211 (a) (2) requires dismissal of a medical or dental malpractice complaint filed without the required certificate of merit because the omission deprives the court of subject matter jurisdiction.

Hannah v. McLaughlin · filed 1987-10-01(a)(2)

Therefore, the court concludes that the failure to accompany a complaint with a properly executed certificate of merit is a defect, which deprives the court of subject matter jurisdiction, and requires dismissal of the complaint pursuant to CPLR 3211 (a) (2).

A motion to dismiss for lack of subject matter jurisdiction under CPLR 3211(a)(2) raises a nonwaivable objection that can be made at any time.

City of Schenectady v. New York State Public Employment Relations Board · filed 1987-12-10(a)(2)

Additionally, a motion to dismiss for lack of subject matter jurisdiction made under CPLR 3211 (a) (2) addresses a nonwaivable objection that can be made at any time (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:58, at 62). Petitioner’s claim that police officers applying for disability benefits under General Municipal Law § 207-c are not public employees presents a question of subject matter jurisdiction. Therefore, petitioner did not waive this claim.

CPLR 3211 (a) (2) permits dismissal of a complaint when the court lacks subject matter jurisdiction because arbitration is the sole remedy.

Empire Insurance v. Metropolitan Suburban Bus Authority · filed 1990-03-13(a)(2)

For these reasons, the IAS Part lacked subject matter jurisdiction over the action and the complaint should, accordingly, have been dismissed pursuant to CPLR 3211 (a) (2).

A motion under CPLR 3211(a)(2) for lack of subject matter jurisdiction is resolved independently of whether service of process established personal jurisdiction.

Davis v. Trey · filed 1992-11-02(a)(2)

The order denying the appellant’s motion to dismiss the complaint against him pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction must be affirmed, irrespective of whether the plaintiff complied with the requirements of Vehicle and Traffic Law § 253 (2) regarding service of process upon him.

Section 3211(e) allows a motion to dismiss for lack of subject matter jurisdiction at any time.

Neville v. Perry · filed 1996-08-16(e)

Since a motion to dismiss pursuant to CPLR 3211 (a) (2) may be brought at any time (CPLR 3211 [e]), respondent’s motion will be deemed a motion to dismiss.

CPLR 3211(e) does not permit parties to confer subject matter jurisdiction by stipulation.

In re the Estate of Messaros · filed 1999-06-01(e)

However, where “a court lacks subject matter jurisdiction, the ... parties may not confer it on the court” (Morrison v Budget Rent A Car Sys., 230 AD2d 253, 260; CPLR 3211 [e]).

Section 3211(a)(2) permits a motion to dismiss for lack of subject matter jurisdiction, even when the motion is framed as a failure to state a cause of action.

Lehmann v. Lehmann · filed 1999-09-21(a)(2)

While the Husband’s complaint states a legitimate cause of action, it is apparent that the Wife’s cross claim is actually requesting this action be dismissed because this court does not have the subject matter jurisdiction to grant the relief requested. (CPLR 3211 [a] [2].)

CPLR 3211(e) generally permits only one motion to dismiss, but a later motion challenging subject matter jurisdiction remains available.

Newton v. Town of Middletown · filed 2006-07-20(e), (a)(2)

Although CPLR 3211 (e) permits a party to move for dismissal pursuant to CPLR 3211 (a) only once, a party never forfeits its right to challenge the court’s subject matter jurisdiction and may, following a CPLR 3211 (a) motion, nevertheless move for dismissal on that basis (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:55, at 82; see also CPLR 3211 [a] [2]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Anstey v Palmatier, 23 AD3d 780, 780 [2005]).

CPLR 3211(a)(2) permits dismissal for lack of subject matter jurisdiction when a petition becomes moot and nonjusticiable.

Callwood v. Cabrera · filed 2008-03-18(a)(2)

Nevertheless, dismissal was appropriate because the landlord’s voluntary agreement to withdraw its objection to petitioner’s succession rights application rendered the petition moot and nonjusticiable, leaving the court without subject matter jurisdiction over the proceeding (see CPLR 3211 [a] [2]).

CPLR 3211(a)(2) permits dismissal for lack of subject matter jurisdiction when a damages claim against a State agency arises from employees’ official duties.

Dinerman v. NYS Lottery · filed 2009-01-20(a)(2)

Consequently, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction, as the claims in this case arise from acts performed, and determinations made, by State employees in the course of their official duties.

CPLR 3211 (a) (2) permits dismissal for lack of subject matter jurisdiction when a special proceeding’s petition was never filed.

Peterkin v. Houses · filed 2011-08-16(a)(2)

Here, since the petitioner failed to file the petition, the “proceeding” was a nullity (see Matter of Parkinson v Leahy, 277 AD2d 810, 811 [2000]). Therefore, the Supreme Court should have granted that branch of the appellant’s motion which was to dismiss the “proceeding” pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction.

CPLR 3211(a)(2) permits dismissal when the court lacks subject matter jurisdiction.

Aragona v. Allstate Insurance · filed 2013-07-09(a)(2)

CPLR 3211 (a) (2) permits the court to dismiss an action because the court does not have subject matter jurisdiction over the dispute.

A CPLR 3211(a)(2) motion for lack of subject matter jurisdiction may be resolved by transferring the case to Supreme Court instead of dismissing it.

93 Ralph, LLC v. New York City Housing Authority Law Department · filed 2013-09-03(a)(2)

However, rather than dismiss the case for lack of jurisdiction pursuant to CPLR 3211 (a) (2), this court has the authority under NY Constitution, article VI, § 19 (f) to transfer this case to Supreme Court.

CPLR 3211(a)(2) does not permit dismissal for lack of subject matter jurisdiction when the disputed issue is a substantive element of the claim.

Garcia v. Government Employees Insurance · filed 2015-07-22(a)(2)

The Supreme Court properly, in effect, upon reargument, adhered to its original determination denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction. ... Whether the subject umbrella liability insurance policy was in effect at the time of the underlying accident “is a substantive element of the cause of action and not a jurisdictional element” (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]).

Section 3211(a)(2) does not support dismissal for lack of subject matter jurisdiction when the objection concerns the facts of a particular case rather than the court’s power to hear that kind of case.

State v. Henry T. · filed 2016-11-18(a)(2)

Because respondent’s argument regarding jurisdiction goes to “the state of facts which may appear” in this particular case, the motion to dismiss pursuant to CPLR 3211 (a) (2) is denied.

Section 3211(a)(2) permits dismissal of a complaint for lack of subject matter jurisdiction.

Kreisler v. B-U Realty Corp. · filed 2018-09-13(a)(2)

... denied defendants' cross motion to dismiss the complaint under CPLR 3211(a)(2), unanimously affirmed, with costs. Supreme Court properly declined to dismiss on subject matter jurisdiction grounds.

Section 3211(a)(2) allows a complaint to be dismissed when the court lacks subject matter jurisdiction.

Matter of P.S. v. Pleasantville Union Free Sch. Dist. · filed 2019-01-16(a)(2)

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(2) to dismiss the complaint.

A CPLR 3211(a)(2) motion addresses the court's competence to adjudicate the action; an issue concerning the merits of the divorce does not establish lack of subject matter jurisdiction.

Patouhas v. Patouhas · filed 2019-05-22(a)(2)

We agree with the Supreme Court's denial of that branch of the defendant's motion which was pursuant to CPLR 3211(a)(2) to dismiss the action ( see Adams v Adams , 255 AD2d 535, 536). The issue of whether the plaintiff established that the parties' marriage had irretrievably broken down for a period of at least six months through the submission of a statement to that effect under oath concerns the merits of the divorce action, not the court's competence to adjudicate it ( see Lacks v Lacks , 41 NY2d 71, 75; Dickerson v Thompson , 73 AD3d 52, 56; Adams v Adams , 255 AD2d at 536).

A motion to dismiss for lack of subject matter jurisdiction may be made after the defendant has answered.

City of New York Human Resources Admin. v. Hewitt · filed 2020-02-07(a)(2)

In this circumstance, we deem that branch of defendant's motion to have been made pursuant to CPLR 3211 (a) (2), based on the court's lack of subject matter jurisdiction, which motion may be made at any time ( see CPLR 3211 [e]; see also Editorial Photocolor Archives v Granger Collection , 61 NY2d at 523), and thus to have been proper despite defendant's earlier submission of an answer.

CPLR 3211(a)(2) permits dismissal for lack of subject matter jurisdiction when federal law preempts the cause of action.

Klingsberg v. Council of Sch. Supervisors & Adm'rs-Local 1 · filed 2020-03-25(a)(2)

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction as the cause of action is preempted by federal law ( see generally Sharabani v Simon Prop. Group, Inc. , 96 AD3d 24, 27).

CPLR 3211(a)(2) supports dismissal for lack of subject matter jurisdiction when an agreement requires litigation in another state.

Ladder Capital Fin. LLC v. Portfolio Hotels, LLC · filed 2021-10-14(a)(2)

Even if the exception to arbitration could be invoked, Supreme Court lacked subject matter jurisdiction (CPLR 3211[a][2]). The management agreement requires litigation arising under that agreement to be brought in California, not in New York, and to apply North Carolina law.

CPLR 3211(a)(2) permits dismissal when the court lacks subject matter jurisdiction.

Adams v. Pilarte · filed 2022-04-21(a)(2)

Thus, the motion court properly dismissed the action against Montefiore under CPLR 3211(a)(2) and (5), as it had no power to issue any further orders without subject matter jurisdiction ( see Darlene W. v Montefiore Med. Ctr. , 180 AD3d 602, 602 [1st Dept 2020]; Dyer v Cahan , 150 AD2d 172, 173 [1st Dept 1989]).

CPLR 3211(a)(2) permits a motion to dismiss for lack of subject matter jurisdiction when federal law preempts a cause of action.

Astro Ready Mix, LLC v. MTA Long Is. R.R. · filed 2023-06-21(a)(2)

Where a cause of action is preempted by federal law, a party may move pursuant to CPLR 3211(a)(2) to dismiss the cause of action on the ground that the court lacks subject matter jurisdiction ( see Klingsberg v Council of Sch. Supervisors & Adm'rs-Local 1: Am. Found. of Sch. Adm'rs, AFL-CIO , 181 AD3d 949, 950; Sharabani v Simon Prop. Group, Inc. , 96 AD3d 24, 27).

On a motion to dismiss for lack of subject matter jurisdiction under CPLR § 3211(a)(2), the defendant bears the burden of showing why the case falls outside the court's jurisdiction.

Paulino v. 335 Grand Realty, Ltd · filed 2024-04-08(a)(2)

On a motion to dismiss under CPLR § 3211(a)(2) on the grounds that a court does not have jurisdiction of the subject matter, the defendant bears the burden of demonstrating why the case is outside the court's original, unlimited and unqualified jurisdiction.

CPLR 3211(a)(2) permits dismissal when the court lacks subject matter jurisdiction.

MNY 7th Corp. v. City of New York · filed 2024-06-06(a)(2)

Pursuant to CPLR 3211 (a) (2) an action should be dismissed when "the court has not jurisdiction of the subject matter of the cause of action."

Section 3211(a)(2) permits dismissal for lack of subject matter jurisdiction; the movant must demonstrate that the court lacks it.

West 144 Cluster LLC v. Victorino · filed 2025-03-07(a)(2)

First, the court notes that CPLR § 3211(a)(2) concerns lack of subject matter jurisdiction. ... The court does not find that respondent has demonstrated that the court lacks subject matter jurisdiction over this summary nonpayment proceeding.

CPLR 3211(a)(5) permits dismissal of a claim that attempts to evade an unappealed denial of leave to add that claim in a prior action.

Lopez v. Lopez · filed 1994-04-12(a)(5)

The instant action is simply an attempt to avoid the consequences of plaintiff’s failure to appeal from the denial of her motion to amend. In any event, plaintiff not only neglected to assert a timely cause of action for necessaries, but she has not offered any explanation for not endeavoring to seek such relief until the eve of trial. The court, therefore, properly granted defendant’s motion to dismiss the complaint in the instant matter (Sorkin v Sorkin, 111 AD2d 845).

Section 3211(a)(5) precludes dismissal on res judicata grounds if there is doubt whether the prior judgment was on the merits.

Gerzof v. Gulotta · filed 1976-08-23(a)(5)

As stated previously, defendants bear the burden of proving the elements of res judicata. Thus, the existence of any doubt as to whether the previous judgment was on the merits precludes dismissal under CPLR 3211 (subd [a], par 5).

A motion to dismiss on res judicata grounds cannot be granted as a matter of law when a factual issue remains about the meaning of a prior stipulated dismissal.

Douglas v. Hay · filed 1978-06-20(a)(5)

While it is clear that at least two of the causes of action dismissed at Special Term involve the same claim as asserted in that fifth cause of action, we find that there is an issue of fact as to the meaning and intent of the parties in the stipulated dismissal. Hence, at this juncture, dismissal on the ground of res judicata as a matter of law is inappropriate.

Section 3211(a)(5) permits dismissal of an identical action when an earlier final judgment binds the parties, even if the plaintiff did not contest the grounds for that judgment.

Cronin v. Gallerie · filed 1979-06-07(a)(5)

Whether or not the plaintiffs litigated the issue of a bar to the proceeding because of a lack of subject matter jurisdiction and/or bankruptcy, it is apparent that they had the opportunity. The outstanding order and judgment dismissing the complaint is final and binding as between the parties and the present proceeding must be dismissed (Spindell v Brooklyn Jewish Hosp., 35 AD2d 962, affd 29 NY2d 888).

A denial under CPLR 3211 generally prevents relitigation of an adjudicated point, but an issue deferred under subsection (d) remains open for later litigation.

Fioranelli v. News Building Corp. · filed 1980-02-05(d)

The denial of a motion under CPLR 3211 will generally invoke this doctrine and prevent the adjudicated point from again being litigated. ... But the doctrine is invoked only when the court has actually adjudicated the point urged on the motion. ... If it has denied the motion without prejudice to its assertion by way of defense in a responsive pleading or otherwise indicated that it is not passing upon it but is rather deferring it to the trial or some later pretrial juncture, which the court has express power to do under CPLR 3211 (subd [d]), the matter is in no sense disposed of and may of course be litigated at that future time.

A dismissal for failure to state a cause of action precludes a later complaint for the same cause of action only if the later complaint fails to correct the defect identified in the first.

175 East 74th Corp. v. Hartford Accident & Indemnity Co. · filed 1980-12-18(a)(7)

The motion in the first action was directed at the pleading, attacking the sufficiency of the complaint as stating a cause of action. A dismissal on such motion has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint (Linton v Perry Knitting Co., 295 NY 14, 17).

A party must invoke res judicata under CPLR 3211 for a judgment to have preclusive effect in the proceeding.

Anderson v. Buscaglia · filed 1981-03-26(a)(5), (e)

Since Stenson was decided nine days after the order of Special Term was entered and neither party has sought to invoke its use (CPLR 3211, subd [a], .par 5; 3211, subd [e]; 3018, subd [b]), it cannot have res judicata effect on the instant proceeding.

Section 3211(a)(1) and (a)(5) permit dismissal when documentary evidence establishes that final judgments resolved the claims and res judicata bars them.

Lahaie v. Stortecky · filed 1982-12-09(a)(1), (a)(5)

Thus, plaintiff’s action was properly dismissed both on the ground of res judicata (CPLR 3211, subd |al, par 5; see ...), since plaintiff’s marital rights had in fact been finally determined and were not subject to collateral attack, and on the ground of documentary evidence (CPLR 3211, subd la], par 1; see ...), since annexed to defendant’s motion to dismiss were, inter alia, the judgment of divorce, the order denying plaintiff’s motion to vacate the judgment, and the order dismissing her petition for a modification of custody.

Section 3211(a)(5) permits dismissal on res judicata grounds when a claim repeats allegations for which the claimant has already been awarded damages.

Wikarski v. State · filed 1983-01-21(a)(5)

Claimant appeals from an order of the Court of Claims which dismissed her claim against the State of New York on the ground of res judicata (CPLR 3211, subd [a], par 5). ... We affirm the dismissal of the first cause of action for reasons stated at the Court of Claims, Moriarty, J., and make the following observations. Giving the claim a liberal construction and accepting its material allegations and all reasonable inferences that may be drawn therefrom as true, we find that the allegations set forth in the claim are identical with those in an earlier claim made by claimant against the State upon which she was awarded direct and consequential damages for the appropriation of the easement.

Under CPLR 3211(a)(5), collateral estoppel does not bar an action to calculate amounts due under an agreement when the prior court did not make that calculation.

Berry v. Berry · filed 1983-05-05(a)(5)

However, a calculation of the amount due plaintiff under the separation agreement was not made by Family Court and, accordingly, collateral estoppel does not bar Supreme Court from entertaining this action.

A prior CPLR 3211 dismissal for failure to oppose and lack of personal jurisdiction does not bar a later action when it did not decide the merits.

Whitman v. Whitman · filed 1983-06-02(a)(5)

Thereafter, plaintiff commenced the present action and defendant cross-moved, ... pursuant to CPLR 3211 (subd [a], par 5) to dismiss on the ground that this action is barred by the doctrine of res judicata. ... We agree with Special Term that a review of Mr. Justice Pennock’s order and “letter decision” reveals that the prior proceeding was dismissed upon the ground that plaintiff failed to timely oppose the motion and upon the ground that the court lacked personal jurisdiction. As no determination was made on the merits, the prior order does not bar maintenance of this action.

Section 3211(a)(5) permits dismissal on res judicata grounds when a second complaint repeats a dismissed claim and adds a claim arising from the same transaction.

Maitland v. Trojan Electric & Machine Co. · filed 1984-06-11(a)(5)

On the record before us, we conclude that the defendants’ motion to dismiss should have been granted on the ground that “the cause of action may not be maintained because of* * * res judicata” (CPLR 3211, subd [a], par 5; see Barrett v Kasco Constr. Co., 56 NY2d 830).

A dismissal for legal insufficiency does not bar a new action for the same relief unless it was expressly on the merits or the new complaint leaves the pleading defects uncorrected.

Deacon's Bench, Inc. v. Hoffman · filed 1984-05-24(a)(7)

Furthermore, when a complaint is dismissed for legal insufficiency or other defect in pleading, it does not act as a bar to commencement of a new action for the same relief unless the dismissal was expressly made on the merits or the new complaint fails to correct the defects or omissions fatal to the prior one [Van Minos v Merkley, 48 AD2d 281, 284; Binkowski v General Elec. Co., 25 AD2d 577, mot for lv to app den 17 NY2d 423; Allston v Incorporated Vil., 25 AD2d 545, 546).

CPLR 3211(a)(5) permits dismissal on res judicata grounds when an earlier merits determination resolved claims arising from the same facts, even under different legal theories.

Long Island Pen Corp. v. Warshavsky · filed 1985-08-12(a)(5)

Accordingly, since this court has already fully examined the same facts and reached a determination on the merits, plaintiffs’ present claims are barred under the principle of res judicata (CPLR 3211 [a] [5]; see, Smith v Russell Sage Coll., 54 NY2d 185).

A CPLR 3211(a)(5) motion based on collateral estoppel fails when the plaintiffs were not parties to the prior proceeding invoked for preclusion.

Dinerstein & Lesser v. Berger · filed 1985-12-09(a)(5)

Defendants’ claim that the present action is barred by the doctrine of collateral estoppel is refuted by the record, which clearly indicates that plaintiffs were never parties to the prior proceeding which allegedly serves as the basis for the instant claim.

Section 3211(a)(5) permits dismissal when a final arbitration award bars relitigation of the claim under res judicata.

Jenkins v. Fink Baking Corp. · filed 1986-02-18(a)(5)

Order reversed insofar as appealed from, with costs, order dated September 26, 1984 vacated, motion granted, and complaint dismissed. The defendant employer correctly asserts that a prior arbitration award, which found simply that the plaintiff William Jenkins was discharged for just cause, was a "final and definite award on the subject matter submitted” (cf. CPLR 7511 [b] [1] [iii]), and, thus, pursuant to the principle of res judicata, bars relitigation of the propriety of the discharge (see, Matter of Ranni [Ross], 58 NY2d 715).

Section 3211(a)(5) permits dismissal on res judicata grounds when a prior determination resolved the same issue between the same parties.

In re Lucy M. · filed 1986-03-20(a)(5)

The issue of custody raised here was necessarily subsumed in the prior determination that adoption is in the child’s best interest. The sole issue before the court is res judicata. ... Therefore, the petition must be dismissed under CPLR 3211 (a) (5).

CPLR 3211(a)(5) permits dismissal on collateral estoppel or res judicata grounds, but dismissal may be denied without prejudice to raising those defenses at trial when the record does not establish whether the claim was previously adjudicated.

Bouklas v. Bouklas · filed 1986-09-15(a)(5)

Motion by the defendant, George Bouklas, to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the grounds of collateral estoppel and res judicata is denied, except that so much of the motion which seeks dismissal of the claim for unreimbursed medical expenses is denied without prejudice to assertion of the defenses of collateral estoppel and res judicata at trial. ... Whether the current claim to $400 for unreimbursed medical expenses involves the same claim, or subsequently incurred medical expenses, is unclear. This information is ascertainable by means of a bill of particulars. Accordingly, that much of the present motion which seeks dismissal of the claim of $400 for unreimbursed medical expenses is denied without prejudice to assertion of a collateral estoppel or res judicata defense at trial.

A party seeking dismissal on collateral estoppel grounds must establish that the issue was necessarily decided in a prior proceeding.

Incorporated Village of Freeport v. Sanders · filed 1986-06-09(a)(5)

Special Term erred in granting the motion to dismiss the plaintiffs complaint on collateral estoppel grounds, since the movants did not meet their burden of establishing that the issue sought to be given collateral estoppel effect was necessarily decided in a prior proceeding (see, Ryan v New York Tel. Co., 62 NY2d 494; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65).

A dismissal under § 3211(a)(5) on res judicata grounds can have preclusive effect even though it does not decide the action’s merits.

Hurd v. Lis · filed 1987-03-12(a)(5)

Supreme Court’s dismissal on res judicata grounds was made pursuant to CPLR 3211 (a) (5) and did not involve the merits of the action. The sole ground was res judicata, which is one of the grounds under CPLR 3211 that can be given preclusive effect (see, Siegel, NY Prac §§ 445, 446, at 590, 591).

A dismissal under CPLR 3211(a)(7) that does not determine the merits does not bar a new claim arising from the same facts.

Plattsburgh Quarries, Inc. v. Palcon Industries, Inc. · filed 1987-04-02(a)(7)

Since the prior dismissal is not to be given full res judicata effect, plaintiff is not barred from asserting a new and different claim, even though it arises out of the same factual grouping.

A motion to dismiss on res judicata grounds fails when the prior federal court lacked jurisdiction over the defendant and did not decide the claims now asserted.

Mirkin & Gordon, P. C. v. Suffolk County-Local 852 Civil Service Employees Ass'n Legal Services Fund · filed 1985-07-15(a)(5)

In sum, since plaintiff cannot be barred from litigating the merits of its present claims against the legal services fund by the prior dismissal of the Federal action, the order appealed from is affirmed.

Section 3211(a)(5) does not permit dismissal on res judicata grounds based on an earlier determination in the same action.

Moezinia v. Damaghi · filed 1989-07-06(a)(5)

Moreover, principles of res judicata are inapplicable when, as in this case, the two determinations arise in the same action.

Section 3211(a)(5) permits dismissal on res judicata grounds when claims arising from the same transaction could have been litigated in a prior action.

Davie v. Dwyer · filed 1989-11-15(a)(5)

Supreme Court erred in denying defendant’s motion. Dwyer was a party to the prior action in his individual capacity. The causes of action asserted in the second action arose out of the same series of transactions alleged in the original complaint, that is, Dwyer’s negotiation and execution of the agreement. ... We reject plaintiffs’ claim that res judicata should not be applied because they did not learn of Dwyer’s misrepresentation until the summary judgment motion in the first action.

CPLR 3211(a)(5) permits dismissal on res judicata grounds when a claim arising from the same transaction was previously brought to a final conclusion, even if the new action seeks a different remedy.

Sieratzki v. Jacobs · filed 1990-04-19(a)(5)

—Order of the Supreme Court, New York County (David B. Saxe, J.), entered on April 28, 1989, which granted defendants’ motion for an order pursuant to CPLR 3211 (a) (5), dismissing, on the ground of res judicata, plaintiffs action for specific enforcement of certain provisions of the parties’ partnership agreement, unanimously affirmed, without costs and disbursements. ... It is axiomatic that "once a claim is brought to final conclusion all other claims arising out of the same transaction or series of transactions are barred even if based upon different theories or seeking a different remedy” (Dorli, Inc. v RGA Accessories, 136 AD2d 465, 466, citing O’Brien v City of Syracuse, 54 NY2d 353, 357).

Section 3211(a)(5) does not support dismissal on res judicata grounds when the prior proceeding and the current action concern different claims.

Benjamin v. Morgan Guaranty Trust Co. · filed 1990-07-10(a)(5)

The doctrine of res judicata is inapplicable when, as here, one action concerned the validity of Germaine’s exercise of the power of appointment in her will and the other concerns the wrongful conduct of Germaine and the trustees under the Benjamin will.

CPLR 3211(a)(5) does not support dismissal on preclusion grounds when the record does not conclusively establish privity and the prior decision does not bar the current claim.

Baldasano v. Bank of New York · filed 1991-06-18(a)(5)

On the present record, there is insufficient evidence to establish conclusively that plaintiffs were in privity with the new general partner in the Florida bankruptcy proceeding. ... On the current record plaintiffs’ claims, whatever the ultimate determination of these issues is, cannot be dismissed summarily.

CPLR 3211(a)(5) permits dismissal on res judicata grounds when later claims arise from the same series of transactions as claims in an earlier action.

Gross v. Glick · filed 1992-05-11(a)(5)

Applying these principles to the case at bar we conclude that the first, third, fourth, and fifth causes of action arise from and are integrally related to the same series of transactions which were alleged in the Bronx County action, i.e., the forced termination of the plaintiff’s employment by the defendants and their subsequent disputes concerning the former’s rights upon such termination. They are therefore barred. ... In view of the foregoing, all the remaining causes of action of the present action must be dismissed (CPLR 3211 [a] [5]).

CPLR 3211(a)(5) permits dismissal when a proceeding is barred by res judicata and the applicable Statute of Limitations.

Koeppel v. Wachtler · filed 1992-05-18(a)(5)

Recognizing that the petitioner’s second application to the Court of Appeals was for the same relief sought in the original application, and involved the same issues, the Supreme Court properly held that the instant proceeding was barred by res judicata and the applicable Statute of Limitations (see, Matter of Goddard [State Bd. of Law Examiners], 160 AD2d 197; Matter of Trivedi v State Bd. of Law Examiners, 86 AD2d 719), and properly dismissed it on that basis.

CPLR 3211(a)(5) permits dismissal when res judicata or collateral estoppel bars a plaintiff from relitigating an issue decided in an earlier criminal action.

Hudson v. Varney · filed 1993-09-27(a)(5)

Contrary to the plaintiff’s contentions, the Supreme Court properly held that the present action is not maintainable because of res judicata and collateral estoppel (see, CPLR 3211 [a] [5]). ... Accordingly, we conclude that the Supreme Court properly dismissed the complaint against both the Varneys and the State, and denied as academic the plaintiff’s motion to restore the case to the trial calendar.

Section 3211(a)(5) permits dismissal on res judicata grounds for claims already decided, but does not bar claims for relief the court in the earlier proceeding lacked authority to grant.

Mills v. Wharton · filed 1994-05-11(a)(5)

At no time was she given an opportunity to litigate these issues in the prior proceeding. (The Judges of the Housing Court are without authority to grant the monetary damages requested herein.) Thus, plaintiffs 1st, 2nd, 3rd, and 5th causes of action are deemed new and independent from the prior proceeding. However, with regard to causes Nos. 4 and 6, plaintiff seeks costs and legal fees in connection with the previously determined appeal. As a determination as to costs and expenses of the prior litigation has been previously made by the Appellate Term, those items in plaintiffs complaint are hereby dismissed.

CPLR 3211(a)(5) permits dismissal when res judicata and collateral estoppel preclude relitigation of the claims.

Honig v. St. George Tower & Grill Owners Corp. · filed 1995-07-10(a)(5)

Contrary to the plaintiff’s contention, the doctrines of res judicata and collateral estoppel preclude the plaintiff from re-litigating the issues surrounding the defendants’ refusal to allow him to continue to sublease his apartment. The Supreme Court, Westchester County, has already determined that the defendants’ refusal was proper. Thus, the Supreme Court, Kings County, properly granted the defendants’ motion to dismiss the complaint in this action (see, Fattah v Getty Petroleum Corp., 211 AD2d 662; Matter of Clamp, 193 AD2d 601).

CPLR 3211(a)(5) permits dismissal when a claim is barred by the Statute of Limitations or res judicata.

Lake Anne Homeowners Ass'n v. Lake Anne Realty Corp. · filed 1995-10-16(a)(5)

The appellants have demonstrated their entitlement to judgment as a matter of law based on their Statute of Limitations and res judicata defenses {see, CPLR 3211 [a] [5]).

A dismissal under CPLR 3211(a)(7) can bar a later action when it rests on a determination of the merits rather than a technical pleading defect.

Lampert v. Ambassador Factors Corp. · filed 1999-11-23(a)(7)

We agree with the IAS Court that this Court’s dismissal, pursuant to CPLR 3211 (a) (7) and 3016 (b), of plaintiffs’ decedent’s prior action for fraud and accounting malpractice against the moving defendants ... constitutes res judicata barring the instant action.

Section 3211(a)(5) permits dismissal when a prior small claims judgment finally resolved the plaintiff’s claim.

Mendez v. Airport Transmission, Inc. · filed 2000-05-10(a)(5)

Supreme Court properly granted defendant’s motion to dismiss the complaint as barred by res ... judicata or collateral estoppel (see, CPLR 3211 [a] [5]).

Section 3211(a)(5) permits dismissal of an action barred by res judicata.

Parris v. Oliva · filed 2000-10-30(a)(5)

We need not address this issue, because the plaintiffs action is clearly barred by the doctrine of res judicata (see, CPLR 3211 [a] [5]).

Section 3211(a)(5) does not require unconditional dismissal on res judicata grounds merely because an earlier action was discontinued with prejudice.

Karniol v. Good Move Trucking, Inc. · filed 2001-03-20(a)(5)

We reject defendant’s argument that the motion court should have unconditionally dismissed plaintiffs’ complaint pursuant to CPLR 3211 (a) (5) on the ground that a prior United States District Court action between the same parties based upon the same causes of action was discontinued “with prejudice.”

A CPLR 3211(a)(5) motion based on res judicata or collateral estoppel fails when the earlier dismissal did not decide the claims on the merits.

Parada v. City of New York · filed 2001-05-24(a)(5)

It is clear, therefore, that, as in Raquet, the dismissal of the City’s cross claims was not on the merits and this Court’s disposition was limited to the holding that plaintiff could not recover against the Landscaper and the Project directly. Accordingly, neither res judicata nor collateral estoppel serve to foreclose the City from interposing its third-party action for contribution and indemnification against the Landscaper and the Project.

Section 3211(a)(5) permits dismissal on res judicata grounds when a prior judgment resolved claims arising from the same transaction, even if the later action uses a different theory of recovery.

Ellis v. Abbey & Ellis · filed 2002-05-14(a)(5)

On this appeal, plaintiff contends that the instant contract action should not have been dismissed on the ground of res judicata (CPLR 3211 [a] [5]). ... Whether the compensation sought to be recovered by plaintiff is based upon a share of the partnership proceeds or the value of services actually rendered, it remains that plaintiff seeks to recover for services provided by decedent to the law firm.

CPLR 3211(a)(5) permits dismissal when a claim is barred by res judicata or collateral estoppel, but dismissal is unavailable when those doctrines do not apply.

North Shore-Long Island Jewish Health System, Inc. v. Aetna US Healthcare, Inc. · filed 2006-03-07(a)(5)

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the second, third, and fourth causes of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs, and the second, third, and fourth causes of action are reinstated. ... Here, however, it is clear that res judicata would have no relevance to the plaintiffs’ causes of action to recover damages for tortious interference with contract, since the claims settled in an arbitration proceeding between the plaintiff MBS-IPA, Inc., and the defendant NYLCare Health Plans, Inc., were for breach of contract and failure to reimburse medical payments (see Singleton Mgt. v Compere, supra at 216). ... Preclusive effect will not be given if the particular issue was not “actually litigated, squarely addressed and specifically decided” (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]).

CPLR 3211(a)(5) permits dismissal when an action is barred by res judicata or collateral estoppel.

Aguilar v. Jacoby · filed 2006-11-28(a)(5)

Accordingly, the Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the instant action on the grounds of res judicata and collateral estoppel (see generally Ryan v New York Tel. Co., 62 NY2d 494 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]).

CPLR 3211(a)(5) permits dismissal when an action is barred by res judicata, which applies only to issues actually decided.

Herrick v. Lyon · filed 2006-12-19(a)(5)

Contrary to the defendant’s contention, the judgment entered in this matter following her prior successful appeal was not a final adjudication of the matter precluding service of an amended complaint, as the dismissal of the complaint was with leave to replead (see Herrick v Lyon, 7 AD3d 571, 572 [2004]). Rather, the purpose of the judgment was merely to direct payment of the appeal costs and disbursements as a money judgment (see CPLR 2222). Accordingly, it is not res judicata with respect to the entire merits of the case, but only as to the issue that was actually decided (see Whitman v Whitman, 95 AD2d 882 [1983]; cf. Aard-Vark Agency, Ltd. v Prager, 8 AD3d 508 [2004]). Consequently, the Supreme Court properly denied the defendant’s motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal of a complaint when the claim is barred by res judicata.

Timoney v. Newmark & Co. Real Estate, Inc. · filed 2007-01-16(a)(5)

The Supreme Court properly granted the defendant’s motion to dismiss the complaint as barred by the doctrine of res judicata.

A motion under CPLR 3211(a)(7) can have res judicata effect for matters decided on the merits.

Coutsodontis v. Peters · filed 2007-04-10(a)(7)

In light of the existence of other pending actions involving the issue of ownership of the shares, we note that an order granting a CPLR 3211 (a) (7) motion will have res judicata effect with respect to matters decided on the merits (see Amsterdam Sav. Bank v Marine Midland Bank, 140 AD2d 781 [1988]; Plattsburgh Quarries v Palcon Indus., 129 AD2d 844 [1987]; Furia v Furia, 116 AD2d 694 [1986]; Siegel, NY Prac § 276 [4th ed]).

Under CPLR 3211(a)(5), dismissal based on collateral estoppel or res judicata is unwarranted when the prior action was dismissed for failure to satisfy a condition precedent rather than on the merits.

Miller v. County of Suffolk · filed 2008-02-13(a)(5)

The dismissal of the prior action, insofar as it was asserted against the defendants, was for a failure to comply with a condition precedent and was not a determination on the merits. Thus, a second action for the same relief was not barred under the doctrines of collateral estoppel and/or res judicata (see Wilson v New York City Hous. Auth., 15 AD3d 572 [2005]; De Ronda v Greater Amsterdam School Dist., 91 AD2d 1088 [1983]; see also Lo Guercio v New York City Tr. Auth., 31 AD2d 759 [1969]).

A prior dismissal based on a preclusion order may support dismissal on res judicata grounds even if the prior order does not expressly say it was on the merits.

Yates v. Roco Co. · filed 2008-02-26(a)(5)

Although the order of the Supreme Court did not specifically recite that the dismissal was “on the merits,” it should have been accorded res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (see Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737, 738-739 [1983]; Kalinka v Saint Francis Hosp., 34 AD3d 742, 744 [2006]).

Section 3211(a)(5) permits dismissal of a complaint when res judicata bars the action.

Rosen v. Kessler · filed 2008-05-13(a)(5)

Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action is barred by res judicata.

Section 3211(a)(5) permits dismissal when a prior dismissal on the merits bars claims arising from the same transactions.

Heritage Realty Advisors, LLC v. Mohegan Hill Development, LLC · filed 2009-01-08(a)(5)

The dismissal in a prior Westchester County action, pursuant to CPLR 3211 (a) (1) and (7), of plaintiffs’ breach of contract action as against defendant Mohegan Hill Development, LLC (MHD), bars the instant action for, inter alia, tortious interference with a contract and unjust enrichment, as to all defendants (see generally O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Not only are the two actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely because of technical pleading defects, but on the merits (see Lampert v Ambassador Factors Corp., 266 AD2d 124 [1999]; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558-559 [1989]).

CPLR 3211(a)(5) does not support dismissal on res judicata grounds when the prior action was dismissed for failure to serve a timely notice of claim, because that dismissal was not on the merits.

Wade v. New York City Health · filed 2009-02-10(a)(5)

Since one of the prerequisites to the invocation of the doctrine of res judicata is that a prior action was determined on the merits (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Fuentes v Brookhaven Mem. Hosp., 10 AD3d at 385-386), the Supreme Court incorrectly concluded that the instant action was barred by the doctrine of res judicata (cf. Wilson v New York City Hous. Auth., 15 AD3d 572, 573 [2005]; Fuentes v Brookhaven Mem. Hosp., 10 AD3d at 385-386).

A dismissal under § 3211(a)(1) and (a)(7) can be a final determination on the merits for res judicata purposes.

Day v. DISTINCTIVE PERSONNEL, INC. · filed 2009-09-01(a)(1), (a)(7)

Finally, it is plain to the Court that the dismissal of the N.Y. Action was a final determination on the merits, where it was the judgment of the New York State Supreme Court that the complaint be dismissed based upon a valid defense founded upon documentary evidence pursuant to N.Y. C.P.L.R. § 3211(a)(1), and a failure to state a cause of action pursuant to N.Y. C.P.L.R. § 3211(a)(7).

CPLR 3211(a)(5) permits dismissal on res judicata grounds when claims arise from the same transaction and alleged wrong as a previously dismissed action.

Greaves v. Ortiz · filed 2009-09-15(a)(5)

In an action, inter alia, to recover damages for fraud, conversion, and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Kings County (Schack, J.), dated March 28, 2008, which granted the motion of the defendant Carmen Ortiz pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against her as barred by the doctrine of res judicata. ... Accordingly, the Supreme Court properly granted Ortiz’s motion to dismiss the complaint insofar as asserted against her as barred by the doctrine of res judicata (see Fogel v Oelmann, 7 AD3d 485, 486 [2004]).

A prior dismissal for failure to appear by an attorney is not a judgment on the merits and does not support dismissal under CPLR 3211(a)(5) on res judicata grounds.

Moran Enterprises, Inc.v. Hurst · filed 2009-10-27(a)(5)

The Supreme Court erred in dismissing the complaint pursuant to CPLR 3211 (a) (5). The principle of res judicata bars relitigation of claims where a judgment on the merits exists from a prior action between the same parties involving the same subject matter (see Matter of Hunter, 4 NY3d 260, 269 [2005]). Dismissal of the prior action insofar as asserted by MEI was upheld by this Court on the ground that MEI failed to appear by an attorney as required by CPLR 321 (a) (see Moran v Hurst, 32 AD3d 909 [2006]). Such was not a determination on the merits and thus res judicata does not apply to bar commencement of another action based on the same transactions (see Sclafani v Story Book Homes, 294 AD2d 559 [2002]; Matter of Farkas v New York State Dept. of Civ. Serv., 114 AD2d 563 [1985]).

CPLR 3211(a)(5) does not support dismissal on res judicata grounds when the prior dismissal for failure to state a cause of action was not on the merits.

Pereira v. St. Joseph's Cemetery · filed 2010-11-30(a)(5)

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it was barred by the doctrine of res judicata is denied. ... Here, our prior dismissal was not on the merits and, consequently, the doctrine of res judicata was not a bar to the plaintiffs second action.

Section 3211(a)(5) permits dismissal when res judicata bars claims arising from the same transaction that could have been raised in a prior action.

Osborne v. Rossrock Fund II, L.P. · filed 2011-03-01(a)(5)

Since the defendant mortgagee was awarded summary-judgment on the complaint and dismissing, inter alia, the appellant mortgagor’s counterclaim in the foreclosure action (see Rossrock Fund II, L.P. v Osborne, 82 AD3d 737 [2011] [decided herewith]), the doctrine of res judicata bars this action (see Cypress Hills Cemetery v City of New York, 67 AD3d 853, 854 [2009]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(5) permits dismissal of a claim barred by res judicata when the claim could impair rights conclusively established by a prior judgment.

Richter v. Sportsmans Properties, Inc. · filed 2011-03-01(a)(5)

Under these circumstances, the doctrine of res judicata bars Richter from maintaining this foreclosure action, which has the potential to impair rights conclusively established in the prior action ... and the Supreme Court should have granted Barniak’s cross motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him.

Section 3211(a)(5) permits dismissal of a proceeding barred by res judicata.

Chiantella v. Vishnick · filed 2011-05-03(a)(5)

Applying these principles, the present proceeding, commenced after the conclusion of two prior proceedings in the Surrogate’s Court, Queens County, involving the same parties and the same issues, is barred by the doctrine of res judicata. Accordingly, the Supreme Court should have granted that branch of the respondent’s motion which was pursuant to CPLR 3211 (a) (5), on the ground that the proceeding is barred by the doctrine of res judicata.

Section 3211(a)(5) permits dismissal on res judicata grounds when claims arising from the same transactions could have been raised in a prior action.

Cox v. Hubbard · filed 2014-03-19(a)(5)

Here, the claims asserted by the plaintiffs against Lisa arose out of the same series of transactions as those at issue in the 2005 action. All of the claims asserted here could have been raised against her in the 2005 action, as they originate from the same events which gave rise to the 2005 action. As a result, the Supreme Court properly directed dismissal of the complaint insofar as asserted against Lisa {see CPLR 3211 [a] [5]).

CPLR 3211(a)(5) permits dismissal on res judicata grounds when the claims could have been raised in a prior action arising from the same transaction.

Bayer v. City of New York · filed 2014-03-26(a)(5)

Accordingly, notwithstanding the fact that the causes of action and legal theories alleged here are different from those alleged in the 2004 action, and some of the defendants are different, the Supreme Court properly granted the defendants’ motion to dismiss the complaint on the ground that the instant action was barred by the doctrine of res judicata.

Section 3211(a)(5) does not permit dismissal on res judicata grounds when the alleged later breaches could not have been raised in the earlier actions.

Valenti v. Clocktower Plaza Properties, Ltd. · filed 2014-06-11(a)(5)

Here, contrary to Clocktower’s contention, res judicata does not bar this action. ... In light of the foregoing, the Supreme Court should not have granted that branch of Clocktower’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it based on the doctrine of res judicata.

A dismissal for failure to state a cause of action is generally not on the merits and does not bar a later action under res judicata.

Rechais v. McGivans · filed 2014-07-09(a)(7)

“As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect” (Pereira v St. Joseph’s Cemetery, 78 AD3d 1141, 1142 [2010]). Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied the defendant’s application pursuant to CPLR 3211 (a) to dismiss the complaint as barred by the doctrine of res judicata (see Hae Sheng Wang v Pao-Mei Wang, 96 AD3d 1005, 1008 [2012]; Sullivan v Nimmagadda, 63 AD3d 908, 909 [2009]; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849 [2008]).

Section 3211(a)(5) permits dismissal when res judicata bars claims arising from a transaction resolved by a prior final judgment.

Dupps v. Betancourt · filed 2014-10-08(a)(5)

The Supreme Court properly granted dismissal of the complaint insofar as asserted against the Bank pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal on res judicata grounds when a prior disposition on the merits bars claims arising from the same transactions that were or could have been raised earlier.

Harris v. City of New York · filed 2014-10-15(a)(5)

The Supreme Court also properly granted that branch of the NAPCO defendants’ cross motion and, in effect, that branch of the separate cross motion of the defendants City of New York, ... New York City Department of Finance, New York City Department of Housing Preservation and Development, and New York Citywide Administrative Services (hereinafter collectively the municipal defendants) which were pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against NAPCO and Nakos, and the municipal defendants, respectively, based on the doctrine of res judicata.

CPLR 3211(a)(5) permits dismissal on res judicata grounds when a claim could have been raised in a prior action arising from the same events.

Pedote v. STP Associates, LLC · filed 2015-01-28(a)(5)

Accordingly, the Supreme Court properly determined that the third cause of action is barred by the doctrine of res judicata (see CPLR 3211 [a] [5]; Bayer v City of New York, 115 AD3d 897 [2014]; Cox v Hubbard, 115 AD3d 783, 785 [2014]; Keselman v City of New York, 95 AD3d 1278, 1279 [2012]).

A prior dismissal for failure to state a cause of action generally is not on the merits and does not support dismissal on res judicata grounds under CPLR 3211 (a) (5).

Hock v. Cohen · filed 2015-02-11(a)(5)

Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied that branch of the moving defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss, on the ground of res judicata, the second through eighth causes of action in the instant complaint insofar as asserted against them (see Rechais v McGivans, 119 AD3d at 667; Canzona v Atanasio, 118 AD3d 841, 842 [2014]; Hae Sheng Wang v Pao-Mei Wang, 96 AD3d 1005, 1008 [2012]; Sullivan v Nimmagadda, 63 AD3d 908, 909 [2009]; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849 [2008]).

Section 3211(a)(5) permits dismissal of causes of action barred by res judicata.

Gleich v. Haenel · filed 2015-02-25(a)(5)

The defendants moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the doctrine of res judicata barred the action. Contrary to the plaintiffs contention, the Supreme Court properly granted those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (5) to dismiss the first, second, third, and fourth causes of action.

Section 3211(a)(5) permits dismissal of a complaint when res judicata bars the claims.

Ciraldo v. JP Morgan Chase Bank, N.A. · filed 2016-06-15(a)(5)

The court correctly found that this action was barred by the doctrine of res judicata, and therefore, the amended complaint was subject to dismissal insofar as asserted against JP Morgan pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits a defendant to move to dismiss on res judicata grounds before serving an answer.

J.K.M. Med. Care, P.C. v. Liberty Mut. Fire Ins. Co. · filed 2016-07-07(a)(5)

Here, defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer. Its remedy then was to move pursuant to CPLR 3025 (b) for leave to amend its answer in order to include that defense.

A dismissal under CPLR 3211(a)(7) for failure to state a cause of action is not on the merits and does not bar a later proceeding under res judicata.

Matter of MRI Enters., Inc. v. Hausknecht · filed 2016-09-21(a)(7)

Here, since the dismissal of the underlying action against the respondent ... pursuant to CPLR 3211 (a) (7) was not on the merits ... the Supreme Court erred in adhering to so much of its original determination as granted that branch of the respondent’s motion which was to dismiss the proceeding on the ground of res judicata.

CPLR 3211(a)(5) permits dismissal of claims barred by res judicata.

Valiotis v. Bekas · filed 2016-12-07(a)(5)

Thus, in this action, the Supreme Court properly granted dismissal of Bekas’s claims against Papagiannopoulos on res judicata grounds pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(5) permits a party to seek dismissal of a claim on res judicata grounds.

Miriam Kaller Family Irrevocable Trust ex rel. Freund v. Lincoln Benefit Life Co. · filed 2017-02-06(a)(5)

As is also relevant herein, pursuant to CPLR 3211 (a) (5), a party may seek dismissal of a cause of action based on the doctrine of res judicata.

A dismissal under CPLR 3211(a)(7) for failure to state a cause of action is generally not on the merits and does not bar a later action under res judicata.

Gounder v. Progressive Credit Union · filed 2017-05-17(a)(7)

Since the first action was dismissed pursuant to CPLR 3211 (a) (7) and its dismissal was not on the merits, the Civil Court should have denied the branch of Progressive's motion seeking to dismiss based on the doctrine of res judicata.

Section 3211(a)(5) permits dismissal of a cause of action barred by res judicata or the applicable statute of limitations.

Williams v. City of Yonkers · filed 2018-04-25(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata.

CPLR 3211(a)(5) permits dismissal of a complaint when the claim is barred by res judicata.

Chapman Steamer Collective, LLC v. KeyBank N.A. · filed 2018-07-18(a)(5)

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata.

Section 3211(a)(5) permits dismissal of a complaint barred by res judicata.

Sciangula v. Montegut · filed 2018-10-24(a)(5)

Accordingly, we agree with the Surrogate's Court's determination to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata.

Section 3211(a)(5) permits dismissal when a claim is barred by res judicata.

Sancar Mgt. v. OneWest Bank, FSB · filed 2018-10-31(a)(5)

Accordingly, we agree with the Supreme Court's determination granting that branch of OneWest's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint.

Section 3211(e) requires a defendant to raise a res judicata defense in a pre-answer motion to dismiss or the answer to avoid waiving it.

Jolley v. Lando · filed 2020-10-02(e)

We agree with plaintiff that defendant's contention is based on the defense of res judicata ( see O'Connell v Corcoran , 1 NY3d 179, 182-184 [2003]; Erhart v Erhart , 226 AD2d 26, 27-29 [4th Dept 1996]) and that she waived that defense by failing to raise it in either a pre-answer motion to dismiss or her answer ( see CPLR 3211 [e]; U.S. Bank N.A. v Gilchrist , 172 AD3d 1425, 1426-1427 [2d Dept 2019]; Country-Wide Ins. Co. v Gotham Med., P.C. , 154 AD3d 608, 610 [1st Dept 2017]; Matter of Hall , 275 AD2d 979, 979 [4th Dept 2000]).