N.Y. C.P.L.R. § 3211

Section 3211(a)(5) permits dismissal on res judicata grounds when a prior final judgment bars claims that could have been raised in the earlier action.

Tracey v. Deutsche Bank Natl. Trust Co. · filed 2020-10-07(a)(5)

The Supreme Court should have granted Deutsche Bank's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint based on the doctrine of res judicata.

CPLR 3211(a)(5) permits dismissal of claims that were or could have been raised in a prior foreclosure action.

Behar v. Wells Fargo Bank, N.A. · filed 2020-10-28(a)(5)

Here, Behar's claims arise out of the same transaction and facts as those raised, or which could have been raised, during the prior foreclosure action commenced against Behar by Wells Fargo ( see Archibald v Wells Fargo Bank, N.A. , 166 AD3d 573, 573-574). ... Accordingly, we agree with the Supreme Court's determination to grant those branches of the motions of Wells Fargo and U.S. Bank and Rushmore which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against each of them.

CPLR 3211(a)(5) permits dismissal of a complaint when its claims are barred by res judicata.

Greenaway v. Clifton & Classon Apt. Corp. · filed 2021-02-24(a)(5)

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint.

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

Saiti v. 316 E. 68th St. Corp. · filed 2021-04-29(a)(5)

Supreme Court correctly determined that the allegations underlying plaintiff's breach of contract, promissory estoppel, and unjust enrichment claims are barred by the doctrine of res judicata, and subject to dismissal under pursuant to CPLR 3211(a)(5).

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

Jacobson Dev. Group, LLC v. Grossman · filed 2021-10-27(a)(5)

Accordingly, the Supreme Court should have granted that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against JAZ with prejudice pursuant to CPLR 3211(a)(5) on the ground of res judicata.

Under CPLR 3211(a)(5), a prior dismissal for lack of standing does not support dismissal on res judicata grounds when the merits were not reached.

Lannon v. Everest Natl. Ins. Co. · filed 2023-01-25(a)(5)

Here, as the prior declaratory judgment action was dismissed based on the plaintiff's lack of standing, without the merits of the plaintiff's allegations having been reached, Everest failed to demonstrate that "a judgment on the merits exist[ed] between the same parties involving the same subject matter" ( Ricatto v Mapliedi , 133 AD3d at 739). ... Accordingly, the Supreme Court should have denied that branch of Everest's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it.

Section 3211(a)(5) permits dismissal on res judicata grounds when a prior foreclosure judgment resolved, or could have resolved, the issues underlying a later action.

Jones v. Flushing Bank · filed 2023-01-25(a)(5)

Accordingly, the Supreme Court properly granted the bank's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that it was barred by the doctrine of res judicata.

Under CPLR 3211(a)(5), dismissal of an earlier complaint for failure to plead a cause of action does not establish res judicata without a showing that the dismissal was on the merits and with prejudice.

Condor Capital Corp. v. CALS Invs., LLC · filed 2023-02-07(a)(5)

Defendants did not establish that plaintiff's newly asserted breach of contract claim is barred by the doctrine of res judicata following dismissal of plaintiff's prior action for failure to plead a cause of action (CPLR 3211[a][5]; see Komolov v Segal , 96 AD3d 513, 513 [1st Dept 2012]).

A dismissal under CPLR 3211(a)(7) for failure to state a claim is not a dismissal on the merits and has no res judicata effect.

Wilder v. Fresenius Med. Care Holdings, Inc. · filed 2023-04-18(a)(7)

To the extent defendants rely on the doctrine of res judicata, this reliance is misplaced because a dismissal under CPLR 3211(a)(7) for failure to state a claim is not a dismissal on the merits with res judicata effect ( see Ray v Ray , 158 AD3d 578, 578 [1st Dept 2018]; Hodge v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO , 269 AD2d 330, 330-331 [1st Dept 2000]).

Section 3211(a)(5) permits dismissal on res judicata grounds when a final judgment precludes claims arising from the same operative facts.

Belton v. Borg & Ide Imaging, P.C. · filed 2023-10-06(a)(5)

Consequently, we conclude that the court properly granted that part of the motion seeking to dismiss the discrimination and retaliation causes of action in the complaint on res judicata grounds inasmuch as there is an identity of issue between the claims asserted in this action and the claims asserted in the federal action.

CPLR 3211(a)(5) permits dismissal of a petition on res judicata grounds.

Monaco v. Van Meerendonk · filed 2023-12-13(a)(5)

The Supreme Court properly granted that branch of the cross-motion of Benjamin Van Meerendonk and 82 Degraw Associates, Inc., which was pursuant to CPLR 3211(a)(5) to dismiss the petition on the ground of res judicata ( see Brody v RBC Mtge. Co. , 215 AD3d 724, 726; Matter of Ram v Hershowitz , 76 AD3d 1022, 1023; see also Monaco v Van Meerendonk , 190 AD3d 968, 968-969).

A party seeking dismissal under CPLR 3211(a)(5) on res judicata grounds must show a final adjudication of the present claims on the merits.

Blano Med., P.C. v. Hertz Co. · filed 2023-12-15(a)(5)

As defendant failed to show that the proper defendant here is "Hertz Vehicles, LLC," there was no demonstration that there had been a final adjudication of the present claims on the merits in the Supreme Court action ( see Ciraldo , 140 AD3d 912; Matter of Hunter , 4 NY3d 260; Schuylkill Fuel Corp. , 250 NY 304; Quality Health Supply Corp. , 2020 NY Slip Op 50996[U], *1), and the Civil Court should have denied this branch of defendant's motion.

CPLR 3211(a)(5) permits dismissal on res judicata grounds when the claims were or could have been raised in an earlier action discontinued with prejudice and without limitation.

Walcer v. Cadbury · filed 2024-03-20(a)(5)

Here, WFA demonstrated that the causes of action asserted against it in this action were raised or could have been raised in the 2017 action, in which the plaintiff executed a stipulation of settlement agreeing to discontinue all claims with prejudice and without limitation. Therefore, this action insofar as asserted against WFA is barred by the doctrine of res judicata ( see id. ). ... Accordingly, the Supreme Court properly granted that branch of WFA's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it.

Section 3211(a)(5) permits dismissal on res judicata grounds when the moving party shows a valid final judgment in a prior action involving the same transactions.

Shanghai Pearls & Gems, Inc. v. Paul · filed 2024-12-20(a)(5)

Under CPLR 3211 (a) (5), a party may move for judgment dismissing one or more causes of action under the doctrine of res judicate. ... The moving party must demonstrate the presence of a valid final judgment in a previous action and that the current claims arise out of those same transactions.

CPLR 3211(a)(5) permits dismissal on res judicata grounds when an earlier action asserting identical claims was discontinued with prejudice.

GCS Second Ave. Owner, LLC v. Cohn · filed 2025-02-25(a)(5)

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered October 18, 2023, which denied defendant Richard L. Cohn's CPLR 3211(a)(5) motion to dismiss, unanimously reversed, on the law, without costs, and the motion granted. ... The April 27, 2023, so-ordered oral stipulation of discontinuance of the 2022 action "with prejudice" as against Cohn had res judicata effect on plaintiff's subsequent action against Cohn commenced February 22, 2023 (the 2023 action), warranting dismissal.

CPLR 3211(a)(5) permits dismissal of claims barred by res judicata, including claims brought by someone in privity with a party to the prior action.

Sunny v. Hossain · filed 2025-03-05(a)(5)

Pursuant to CPLR 3211(a)(5), a party may seek dismissal of a cause of action based upon the doctrine of res judicata ( see Ciafone v City of New York , 227 AD3d 946, 946). ... Because this action essentially asserts the same causes of action against the same parties, all causes of action insofar as asserted by Sunny are barred by the doctrine of res judicata. Further, Akhter, as a former co-owner of the subject property, is in privity with Sunny ( see Suter v Ross , 179 AD3d 1127, 1129; see generally Watts v Swiss Bank Corp. , 27 NY2d at 277), and thus, the causes of action insofar as asserted by Akhter in this action are also barred by the doctrine of res judicata ( see Gregg v Lan Zhen Chen , 220 AD3d at 699).

A motion to dismiss under CPLR 3211(a)(5) on res judicata grounds fails when the defendant was neither a party to the earlier action nor in privity with a party.

Kirby v. David Fabricators of N.Y., Inc. · filed 2025-03-06(a)(5)

However, the doctrine of res judicata does not bar plaintiff from bringing this action against defendant because defendant was neither a party to the Illinois action nor in privity with Bakers Pride, an alleged joint tortfeasor ( see Rojas v Romanoff , 186 AD3d 103, 108 [1st Dept 2020]; Blue Sky, LLC v Jerry's Self Stor., LLC , 145 AD3d 945, 947 [2d Dept 2016]).

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

Heller v. NYC Sch. Support Servs., Inc. · filed 2025-04-02(a)(5)

Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground of res judicata ( see Albanez v Charles , 134 AD3d at 658; Bayer v City of New York , 115 AD3d at 899).

Section 3211(a)(5) permits dismissal on res judicata grounds when a party had a full and fair opportunity to litigate a claim arising from the same transaction in a prior proceeding.

Aykac v. City of New York · filed 2025-04-07(a)(5)

Pursuant to CPLR § 3211(a)(5), a court will dismiss an action based on res judicata where a party has a “full and fair opportunity to litigate the claim in a prior proceeding based on the same transaction, but did not raise it therein” (Schwartzreich v E.P.C. Carting Co., Inc., 246 AD2d 439, 440-441 [1st Dept 1998]).

Section 3211(a)(5) permits dismissal on res judicata grounds when claims arise from the same transaction as claims resolved in a prior action.

Wong v. Actalent Global Headquarters · filed 2025-06-12(a)(5)

Civil Court properly dismissed plaintiff's claims as barred by res judicata ( see Murphy v Citigroup Global Mkts. , 185 AD3d 486 [2020], lv denied 36 NY3d 903 [2020]). The breach of contract and defamation claims that plaintiff asserts in the instant complaint "aris[e] out of the same transaction or series of transactions" as the claims in plaintiff's prior action against Aerotek, Inc., which was dismissed on summary judgment in a prior unappealed order.

CPLR 3211(a)(5) permits dismissal when the claims in an amended complaint are barred by res judicata.

Asset Devs. Corp. v. Grossman · filed 2025-07-09(a)(5)

The Supreme Court properly granted that branch of the JAZ Grand defendants' cross-motion which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against JAZ Grand. The causes of action insofar as asserted against JAZ Grand in the second amended complaint were barred by the doctrine of res judicata.

Section 3211(a)(5) does not support dismissal on res judicata grounds when the earlier court lacked jurisdiction to hear the claims.

Lana, LLC v. Coffie · filed 2025-08-06(a)(5)

Here, the Supreme Court erred in granting those branches of the cross-motion of Coffie and St. Louis which were, in effect, pursuant to CPLR 3211(a)(5) to dismiss the first and second causes of action insofar as asserted against them. The Civil Court lacked subject matter jurisdiction to entertain each of those causes of action in the holdover proceeding, and therefore, those causes of action insofar as asserted against Coffie and St. Louis were not precluded by the doctrine of res judicata ( see Fifth Line, LLC v Fitch , 167 AD3d 847, 849; Ross Realty v V & A Fabricators, Inc. , 42 AD3d at 249; see also RPAPL 711, 741[5]).

CPLR 3211(a)(5) permits dismissal of a cause of action based on res judicata.

Abakporo v. Abakporo · filed 2025-12-03(a)(5)

Pursuant to CPLR 3211(a)(5), a party may seek dismissal of a cause of action based upon the doctrine of res judicata ( see Sunny v Hossain , 236 AD3d 699, 699-700; Ciafone v City of [*2]New York , 227 AD3d 946, 946).

CPLR 3211(a)(5) permits dismissal of claims barred by res judicata following a prior dismissal on the merits.

Shaia v. Saw Mill Capital, LLC · filed 2026-02-25(a)(5)

Here, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action to recover damages for breach of contract and for declaratory relief on the ground that they are barred by the doctrine of res judicata, based upon the dismissal, on the merits, of the amended complaint insofar as against them in the prior action ( see Schwarz v Schwarz , 150 AD3d 915).

A CPLR 3211(a)(7) dismissal can have res judicata effect when it resolves the merits rather than only a technical pleading deficiency.

Varma v. Allstate Ins. Co. · filed 2026-04-24(a)(7)

Plaintiff further contends that the dismissal in the prior action under CPLR 3211 has no res judicata effect. We reject that contention. ... Here, the court made it clear that its dismissal of the amended complaint in the prior action was a dismissal on the merits, and we therefore conclude that the dismissal precludes plaintiff's attempt to relitigate the breach of contract cause of action.

Section 3211(a)(5) bars relitigation of a defense or counterclaim already resolved by arbitrators.

von Engelbrechten v. Galvanoni & Nevy Bros. · filed 1969-04-30(a)(5)

The defense and counterclaim, alleging the plaintiff’s breach of contract, having been disposed of by the arbitrators, may not be relitigated here (cf. CPLR 3211, subd. [a], par. 5).

Section 3211 permits dismissal for lack of subject matter or personal jurisdiction, and a court that finds jurisdiction lacking may not condition dismissal on submission to another state's jurisdiction or waiver of a limitations defense.

Foley v. Roche · filed 1979-06-26(a)(2), (a)(8), (a)(9)

A court when faced with a motion to dismiss for lack of jurisdiction may not properly condition dismissal upon a defendant’s agreeing to submit to the jurisdiction of another court in another State by acceptance of process there and waiver of Statute of Limitations as a defense. ... If the court determines that it lacks jurisdiction, the action must be dismissed and, in such case, there is no authority to condition the dismissal.

CPLR 3211 permits dismissal for lack of personal or in rem jurisdiction, and a jurisdictional objection raised in the answer is not waived.

Tomaszewski v. Cleveland · filed 1980-03-18(e)

While defendants do not specify whether this motion is for summary judgment pursuant to CPLR 3212, or for failure of personal jurisdiction under CPLR 3211 (subd 8) or in rem jurisdiction under CPLR 3211 (subd 9), this court treats this motion as being under CPLR 3211. ... It should be noted that both defendants raised jurisdictional objections in their answers, and as such cannot be claimed to have waived their right under CPLR 3211 (subd [e]).

A motion to dismiss for lack of personal jurisdiction may be denied at this stage when the defendant alone holds information that could refute the jurisdictional allegation.

Prentice v. Demag Material Handling, Ltd. · filed 1981-02-26(a)(8)

Appellant then moved pursuant to CPLR 3211 (subd [a], par 8) for an order dismissing the complaint for lack of personal jurisdiction. ... Since appellant is in sole possession of information that may refute the allegation that it engages in substantial international trade, denial of appellant’s motion at this stage of the action was proper (see Siegel, New York Practice, § 93, pp 108-109).

A motion to dismiss for lack of personal jurisdiction may be denied without prejudice to renewal after discovery when the plaintiff shows that facts may exist to defeat it.

Dino & Artie's Automatic Transmission Co. v. Foundation Life Insurance · filed 1985-05-14(a)(8)

After examining the record, we hold that defendant Foundation’s motion should have been denied, without prejudice to renewal, after plaintiffs have had an opportunity to complete discovery on the issue of whether an agency relationship exists between defendant Foundation and New York broker G&P, so as to bring defendant Foundation’s presence within this State.

CPLR 3211(a)(8) permits dismissal of a third-party complaint when improper service leaves the court without personal jurisdiction over the third-party defendants.

Calvert Fire Insurance v. Special Risk Covers, Inc. · filed 1986-12-18(a)(8)

Therefore, the court did not have in personam jurisdiction over the Reinsurers, and, accordingly, we grant the requested dismissal. (CPLR 3211 [a] [8].)

Under CPLR 3211(a)(8), a motion to dismiss for lack of personal jurisdiction should be granted when no facts are offered to contradict the movant’s jurisdictional claim.

Power v. Rhodes · filed 1989-04-03(a)(8)

Since no facts were presented in opposition to the motion to contradict his claim, the motion should have been granted (CPLR 3211 [a] [8]).

CPLR 3211(d) allows a party opposing dismissal for lack of jurisdiction to rely on essential facts that may exist but cannot yet be stated; merely invoking the provision is insufficient.

Mandel v. Busch Entertainment Corp. · filed 1995-05-08(d)

CPLR 3211 (d) protects a party opposing a motion to dismiss the complaint on jurisdictional grounds by providing that such motion may be defeated by merely showing "that facts essential to justify opposition may exist but cannot then be stated”. However, a party’s mere invocation of CPLR 3211 (d) is not, by itself, enough to defeat such a motion.

On a motion to dismiss for lack of personal jurisdiction, allegations of fraudulent asset transfers without consideration can place the burden on defendants to show what consideration was given.

Corpuel v. Galasso · filed 2000-01-04(a)

In the context of defendants’ motion seeking to dismiss the complaint against certain defendants situated in Texas upon the ground that those defendants are not subject to the jurisdiction of New York courts, plaintiffs’ allegations that transfers of assets to the Texas defendants occurred without consideration, and that the Texas defendants committed fraud by acting with others to place defendant judgment debtor’s assets beyond plaintiff judgment creditors’ reach, were sufficient to impose a burden upon defendants to show what consideration, if any, was given in exchange for the transferred assets (see, Moore Adv. Agency v I.H.R., Inc., 114 AD2d 484).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

Gleizer v. American Airlines, Inc. · filed 2006-06-06(a)(8)

Accordingly, the Supreme Court properly granted Laro’s motion to dismiss since it did not have jurisdiction over Laro (see CPLR 3211 [a] [8]).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over a defendant.

Rogers v. Dunkirk Aviation Sales & Service, Inc. · filed 2006-07-07(a)(8)

Contrary to the contention of the Zenith Fuel defendants, the court obtained jurisdiction over them pursuant to CPLR 1024 and thus properly denied their motion to dismiss the amended complaint against them pursuant to CPLR 3211 (a) (8).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when service is defective.

Robles v. Mirzakhmedov · filed 2006-11-14(a)(8)

The Supreme Court correctly granted the motion of the defendant Luisa F. Corona pursuant to CPLR 3211 (a) (8), to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, as the plaintiff did not dispute that service upon Corona was defective (see Tarzy v Epstein, 8 AD3d 656 [2004]).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over a defendant.

County of Nassau v. Yohannan · filed 2006-11-21(a)(8)

“[Although the defendants] did admit receipt of the pleadings, actual notice of the lawsuit does not cure the jurisdictional defect” (DeShong v Marks, 144 AD2d 623, 624 [1988]; see Kaszovitz v Weiszman, 110 AD2d 117, 120 [1985]).

Section 3211(a)(8) permits a defendant to move to dismiss a complaint for lack of personal jurisdiction.

Town of Brookhaven v. Mascia · filed 2007-03-20(a)(8)

In an action, inter alia, to enjoin the defendants from using or occupying a structure on their premises and to direct that the structure be demolished, the defendants appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County, dated September 30, 2005, as granted the plaintiffs motion for summary judgment, and the plaintiffs separate cross motion to dismiss the defendants’ affirmative defenses and counterclaims, and denied the defendants’ motion for an award of costs and the imposition of a sanction against the plaintiff and the plaintiffs attorneys, and the defendant’s separate motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) based upon the affirmative defense of lack of personal jurisdiction. ... The Supreme Court correctly granted the Town’s cross motion to dismiss the defendants’ affirmative defenses and counterclaims and correctly denied the defendants’ motion to dismiss the complaint based on the affirmative defense of lack of personal jurisdiction (see Public Adm’r of County of N.Y. v Markowitz, 163 AD2d 100 [1990]; Ralph C. Sutro Co. v Valenzuela, 113 AD2d 793, 794 [1985]).

CPLR 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

Robert v. Fondulis · filed 2007-05-22(a)(8)

The Supreme Court properly granted that branch of the cross motion of the respondents Robert LoCicero, as Freedom of Information Law Officer for the Department of Health, and Paul Kietzman, as Freedom of Information Law Officer for the Office of Mental Retardation and Developmental Disabilities, which was to dismiss the petition insofar as asserted against them on the ground of lack of personal jurisdiction (see CPLR 307, 3211 [a] [8]; Matter of Schachter v Sobol, 213 AD2d 551 [1995]).

A motion to dismiss for lack of jurisdiction does not require dismissal when the plaintiff has made a timely second attempt at service whose validity has not been tested.

WU/LH 36 Midland, LLC v. Levinson · filed 2009-09-21(a)(8)

Defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8), lack of jurisdiction, is granted, to the extent that the court finds that the service of process made on or about July 14, 2009 was defective, however, the action is not dismissed because it is conceded that service was made again after this motion was made and the effectiveness of that subsequent service has not been tested.

CPLR 3211(a)(5) and (8) provide for dismissal when untimely service leaves the court without personal jurisdiction and the limitations period has expired.

Lehman v. North Greenwich Landscaping, LLC · filed 2009-09-29(a)(5), (8)

Since Horton was not timely served and the statute of limitations has expired, the Supreme Court should have granted Horton’s motion which was to dismiss the complaint and all cross claims insofar as asserted against it pursuant to CPLR 3211 (a) (5) and (8) for lack of personal jurisdiction and as time-barred.

Section 3211(a)(8) permits dismissal when ineffective service leaves the court without personal jurisdiction over a defendant.

New York State Thruway Authority v. Fenech · filed 2010-08-12(a)(8)

In this action to recover for damage to property, defendants Nathan C. Fenech and Silver Creek Transport Ltd. move, in part, pursuant to CPLR 3211 (a) (8) to dismiss the complaint as against them on the ground that the court lacks personal jurisdiction over them. ... Thus, based on the foregoing, the court grants the motion by the moving defendants to dismiss the complaint on the grounds that the court lacks personal jurisdiction.

Section 3211(d) permits a court to deny a motion to dismiss without prejudice to renewal after jurisdictional discovery when the plaintiff makes a sufficient start showing that facts supporting personal jurisdiction may exist.

Expert Sewer & Drain, LLC v. New England Municipal Equipment Co. · filed 2013-05-08(d)

Here, the affidavit from the plaintiffs president established that facts may exist to support the exercise of personal jurisdiction over the defendant, and thus, the plaintiff made a sufficient start in showing that further discovery on the issue of personal jurisdiction over the defendant is warranted. Under those circumstances, the Supreme Court should have exercised its discretion pursuant to CPLR 3211 (d) to deny the motion without prejudice to renewal upon the completion of discovery on that issue (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 408 [2005]).

Section 3211(a) permits dismissal of a complaint when the plaintiff lacks standing.

Legrand v. Moore · filed 2013-12-11(a)

The Supreme Court also properly granted that branch of the separate motion of the defendant Jean Beauvais which was pursuant to CPLR 3211 (a) to dismiss the complaint, in effect, insofar as asserted against him ... on the ground that the plaintiff lacked standing.

CPLR 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Wohl v. Landmark Capital II, LLC · filed 2013-12-18(a)(8)

Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal for lack of jurisdiction when the defendant is not an entity amenable to suit or service of the complaint is defective.

Holtzman v. KTB Athletics SB TM · filed 2014-01-15(a)(8)

Those branches of the defendant’s motion which were pursuant to CPLR 5015 (a) (4) to vacate an order dated October 4, 2012, entered upon its default in answering the complaint, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of jurisdiction, should have been granted.

A CPLR 3211(a) motion to dismiss for lack of standing should not be granted when a proposed amended complaint cures the standing defect.

United Fairness, Inc. v. Town of Woodbury · filed 2014-01-22(a)

Additionally, since the proposed amended complaint rectified the plaintiff’s lack of standing, the Supreme Court should not have granted the motions to dismiss the complaint on the basis of lack of standing.

A defendant seeking dismissal under CPLR 3211(a) for lack of standing must establish that the plaintiff was not the holder or assignee of the mortgage and note when the action began.

US Bank National Ass'n v. Weinman · filed 2014-12-31(a)

However, the Supreme Court properly denied that branch of Weinman’s cross motion which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against her, which was based upon the plaintiffs lack of standing, as she failed to establish that the plaintiff was not the holder or assignee of the subject mortgage and the underlying note at the time this action was commenced (see Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d at 683).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction, but a defendant seeking dismissal for improper service must rebut the process server’s affidavit with specific sworn facts.

Wachovia Mortgage Corp. v. Toussaint · filed 2016-11-30(a)(8)

Contrary to the appellant’s contention, she failed to rebut this presumption of proper service, since she did not, in her affidavit submitted in support of her cross motion, swear to specific facts to rebut the statements in the process server’s affidavit (see Wachovia Bank, N.A. v Carcano, 106 AD3d 726 [2013]; Bank of N.Y. Mellon v Scura, 102 AD3d at 715; Scarano v Scarano, 63 AD3d 716, 716 [2009]; Simonds v Grobman, 277 AD2d 369, 370 [2000]). ... Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint and properly denied the appellant’s cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, and a court must hold a hearing when a specific sworn denial creates a credibility issue about service.

HSBC Bank USA, N.A. v. Archibong · filed 2018-01-10(a)(8)

Here, the Supreme Court erred in determining that branch of the motion of the defendant Delia Archibong (hereinafter the defendant) which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction without first conducting a hearing.

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant, including when proper service is not proved.

Deutsche Bank Natl. Trust Co. v. Vilfranc · filed 2018-01-17(a)(8)

Nevertheless, even considering the affidavit, the plaintiff failed to sustain its burden of proving, by a preponderance of the evidence, that the defendant was served with the summons and complaint ( cf. Wells Fargo Bank, N.A. v Chaplin , 100 AD3d 744, 745). The plaintiff's remaining contentions are either without merit or unpreserved for appellate review. Accordingly, the Supreme Court properly granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over a defendant.

AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A. · filed 2018-02-08(a)(8)

Accordingly, we reverse the order appealed from and grant defendants' motion to dismiss the proceeding pursuant to CPLR 3211(a)(8).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when the petitioner fails to comply with the applicable service deadline.

Matter of Genting N.Y., LLC v. New York City Envtl. Control Bd. · filed 2018-02-14(a)(8)

Contrary to the petitioner's contention, the fact that CPLR 403(d) permits a court to grant an order to show cause to be served "in lieu of a notice of petition at a time and in a manner specified therein" does not abrogate the jurisdictional time limit established by CPLR 306-b, and the Supreme Court properly granted the respondents' cross motion pursuant to CPLR 3211(a)(8) to dismiss the amended petition for lack of personal jurisdiction based upon the petitioner's failure to comply with CPLR 306-b ( see CPLR 306-b; CPLR 403[d]; Waggaman v Vernon , 123 AD3d 1110, 1111; Matter of Parrino v New York City Bd. of Stds. & Appeals , 90 AD3d 931; Matter of Eldor Contr. Corp. v Town of Islip , 277 AD2d 233, 234).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff fails to prove that service was properly effectuated.

Steuhl v. CRD Metalworks, LLC · filed 2018-03-08(a)(8)

In light of the conflicting testimony, and when deferring to Supreme Court's credibility determinations, we see no reason to disturb the determination that plaintiffs failed to carry their burden of demonstrating proper service by a preponderance of the evidence and that the complaint must be dismissed due to a lack of personal jurisdiction ( see Matter of Curto v State of N.Y. Dept. of Pub. Serv. , 140 AD3d 1339, 1341 [2016], lv denied 28 NY3d 911 [2017]; Woods v M.B.D. Community Hous. Corp. , 90 AD3d 430, 430 [2011]; Matter of Rosenberg v New York State Bd. of Regents , 2 AD3d 1003, 1004 [2003]; compare Matter of DeMeo v City of Albany , 63 AD3d at 1272-1273).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, and process server affidavits establish prima facie proper service unless sufficiently refuted.

JPMorgan Chase Bank, Natl. Assn. v. Daar · filed 2018-05-09(a)(8)

We agree with the Supreme Court's determination to deny, without a hearing, those branches of the defendants' motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered upon their failure to appear or answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. The process server's affidavits constituted prima facie evidence of proper service, and the defendants' allegations were insufficient to refute the content of the affidavits ( see JPMorgan Trust Bank, N.A. v Hoffmann, 154 AD3d 699; Citimortgage, Inc. v Baser, 137 AD3d 735, 736; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457, 458).

CPLR 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Zerbi v. Botwinick · filed 2018-06-13(a)(8)

Accordingly, we agree with the Supreme Court's determination to deny the plaintiffs' cross motion and to grant that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against Botwinick.

Section 3211(a)(8) permits a defendant to seek dismissal for lack of personal jurisdiction, including when service of process was improper.

Mizerek v. Rosenfeld · filed 2018-06-27(a)(8)

If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" ... Therefore, the Supreme Court should have directed a hearing to determine whether Rosenfeld was properly served with process.

Section 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

HSBC Bank USA, N.A. v. Oqlah · filed 2018-07-25(a)(8)

We also agree with the Supreme Court's determination granting the plaintiff's subsequent cross motion to deem the service on the defendant on April 30, 2016, timely, nunc pro tunc, and denying the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

Section 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Aurora Loan Servs., LLC v. Moreno · filed 2018-11-28(a)(8)

We agree with the Supreme Court's determination granting those branches of Moreno's motion which were pursuant to CPLR 5015(a)(4) to vacate the order of reference and thereupon, pursuant to CPLR 3211(a)(8) to direct the dismissal of the complaint insofar as asserted against him for lack of personal jurisdiction.

Section 3211(a) permits dismissal when improper service fails to confer personal jurisdiction.

DeMartino v. Harris · filed 2018-12-05(a)

Accordingly, the method of service employed by the plaintiffs failed to acquire personal jurisdiction over the defendant, and we agree with the Supreme Court's determination granting that branch of the defendant's cross motion which was to dismiss the complaint on that basis.

A motion under CPLR 3211(a)(8) tests personal jurisdiction, including whether service of process was validly made.

U.S. Bank N.A. v. Langner · filed 2019-01-23(a)(8)

The Supreme Court should not have granted the defendant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. ... Here, the process server's affidavit established, prima facie, that service was validly made pursuant to CPLR 308(2) ( see E*Trade Bank v Vasquez , 126 AD3d 933, 934). ... Therefore, the affirmation was without probative value, and the Supreme Court should have denied the defendant's cross motion to dismiss the complaint insofar as asserted against him.

CPLR 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction over the defendant.

Aybar v. Aybar · filed 2019-01-23(a)(8)

The orders entered May 31, 2016, are reversed, on the law, and the separate motions of the defendants Ford Motor Company and Goodyear Tire & Rubber Co. pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them are granted.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction, and proper re-service during the motion can eliminate the jurisdictional objection.

Wilmington Trust, N.A. v. Pape · filed 2019-02-27(a)(8)

The order denied that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it. ... Moreover, the plaintiff's re-service of the summons and verified complaint pursuant to CPLR 311-a during the pendency of the defendant's motion to dismiss obviated the defendant's jurisdictional objection ( see Rosenberg v Trazzera , 147 AD3d 1099; Bank of Am., N.A. v Valentino , 127 AD3d 904; IBJ Schroder Bank & Trust Co. v Zaitz , 170 AD2d 579).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

Lida's Med. Supply, Inc. v. American Ind. Ins. Co. · filed 2019-03-29(a)(8)

For the reasons states in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128 [A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant's motion to dismiss the complaint is granted ( see also Matter of Government Empls. Ins. Co. v Basedow , 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman , 21 AD3d 489 [2005]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when the defendant was not served.

BAC Home Loans Servicing, L.P. v. Rogener · filed 2019-04-17(a)(8)

Since the defendant was not served in the action, the Supreme Court should have granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction ( see Zerbi v Botwinick , 162 AD3d at 832; Kazimierski v New York Univ. , 18 AD3d 820; McGregor v Volvo GM Heavy Truck Corp. , 286 AD2d at 484-485).

Section 3211(a)(8) allows a defendant to seek dismissal when the court lacks personal jurisdiction over the defendant.

Pierre J. Renelique, M.D., P.C. v. American Ind. Ins. Co. · filed 2019-04-26(a)(8)

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which sought to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over defendant. For the reasons stated in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128 [A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant's motion to dismiss the complaint is granted ( see also Matter of Government Empls. Ins. Co. v Basedow , 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman , 21 AD3d 489 [2005]).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

Performance Plus Med., P.C. v. American Ind. Ins. Co. · filed 2019-04-26(a)(8)

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which sought to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over defendant. For the reasons stated in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128 [A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant's motion to dismiss the complaint is granted.

CPLR 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

JCC Med., P.C. v. American Ind. Ins. Co. · filed 2019-04-26(a)(8)

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which sought to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over defendant. For the reasons stated in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128 [A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant's motion to dismiss the complaint is granted ( see also Matter of Government Empls. Ins. Co. v Basedow , 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman , 21 AD3d 489 [2005]).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

GL Acupuncture, P.C. v. American Ind. Ins. Co. · filed 2019-04-26(a)(8)

For the reasons stated in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128 [A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant's motion to dismiss the complaint is granted ( see also Matter of Government Empls. Ins. Co. v Basedow , 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman , 21 AD3d 489 [2005]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, including improper service of process.

Green Tree Servicing, LLC v. Ferando · filed 2019-05-15(a)(8)

Accordingly, we agree with the Supreme Court's determination denying, without a hearing, that branch of the appellant's motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction based upon improper service of process pursuant to CPLR 308(2).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when jurisdiction was not obtained by proper service of process.

Bushell v. City of New York · filed 2019-05-22(a)(8)

"The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" ... Under the circumstances, the plaintiff failed to meet his burden of proving by a preponderance of the evidence that jurisdiction over the hospital was obtained by proper service of process ( see Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc. , 160 AD3d 1009, 1011; Simmons v Boro Med., 270 AD2d 477, 479). Accordingly, we agree with the Supreme Court's determination to grant the hospital's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction.

Section 3211(a)(8) permits a defendant to seek dismissal of a complaint for lack of personal jurisdiction.

Wells Fargo Bank, NA v. Burshstein · filed 2019-05-29(a)(8)

Accordingly, we agree with the Supreme Court's determination, in effect, to deny that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

CPLR 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Bank of N.Y. Mellon v. Dyer · filed 2019-05-29(a)(8)

We agree with Bronx 26 that the Supreme Court should have granted its cross motion [*2] pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against it for lack of personal jurisdiction, as the plaintiff conceded that it never served this defendant ( see CPLR 306-b, 3211[a][8]; Cooper v Thao , 162 AD3d 980, 981).

Section 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction based on improper service of process.

GMAC Mtge., LLC v. Eberle · filed 2019-05-08(a)(8)

Here, the defendant's submissions in support of his cross motion, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, were insufficient to defeat the presumption of proper service created by the affidavit of the plaintiff's process server.

Section 3211(a)(8) allows a defendant to move to dismiss a complaint when the court lacks personal jurisdiction over the defendant.

Williams v. St. John's Episcopal Hosp. · filed 2019-06-19(a)(8)

We agree with the Supreme Court's determination to grant the defendant's application to dismiss the complaint insofar as asserted against him based on lack of personal jurisdiction ( see CPLR 3211[a][8]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, but a bare, unsubstantiated denial of service does not overcome the presumption of proper service from a process server's affidavit.

HSBC Bank USA v. Archer · filed 2019-06-19(a)(8)

Here, the affidavit of service established proper service both upon the business entity owned by Archer and upon Archer herself by the personal delivery of the pleadings to Archer in compliance with CPLR 308(1) ( see CPLR 311, 311-a; Fernandez v Morales Bros. Realty, Inc. , 110 AD3d 676, 677; Mattter of T.E.A. Mar. Automotive Corp. v Scaduto , 181 AD2d 776, 780-781; Helfand v Cohen , 110 AD2d 751, 752). Archer's bare and unsubstantiated denial of service was insufficient to rebut the presumption of valid service arising from the process server's affidavit or to warrant a hearing on the issue ( see e.g. PNC Bank, N.A. v Bannister , 161 AD3d 1114, 1115-1116).

CPLR 3211(a) permits dismissal for lack of personal jurisdiction, and a properly executed service affidavit creates a presumption of proper service that a bare denial does not rebut.

Wells Fargo Bank, NA v. Johnston · filed 2019-08-28(a)

A bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where "the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit" ( US Natl. Bank Assn. v Melton , 90 AD3d at 743; see U.S. Bank, N.A. v Arias , 85 AD3d at 1015; Scarano v Scarano , 63 AD3d at 716).

Section 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Zheleznyak v. Gordon & Gordon, P.C. · filed 2019-09-11(a)(8)

Accordingly, we agree with the court's determination to grant that branch of his motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction ( see Deb v Hayut , 171 AD3d at 863; see also Estate of Norman v Perlman v Kelley , ___ AD3d ___ [Appellate Division Docket No. 2017-03966; decided herewith]).

CPLR 3211(a)(8) authorizes a motion to dismiss a complaint for lack of personal jurisdiction.

Hulse v. Wirth · filed 2019-09-11(a)(8)

Accordingly, the Supreme Court should have denied the Wirths' motion pursuant to CPLR 3211(a)(8) to dismiss the original complaint insofar as asserted against them for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal of a complaint when the court lacks personal jurisdiction over the defendant.

Wells Fargo Bank, N.A. v. Heaven · filed 2019-10-02(a)(8)

Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 5015(a)(4) to vacate so much of the order dated December 2, 2013, as granted those branches of the plaintiff's motion which were for leave to enter a default judgment and an order of reference, and the order and judgment of foreclosure and sale, and thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him ( see Deutsche Bank Natl. Trust Co. v Ferguson , 156 AD3d at 461; Washington Mut. Bank v Murphy , 127 AD3d at 1174-1175).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction, but proper service supported by a sufficient process server's affidavit defeats the motion unless specifically rebutted.

U.S. Bank Natl. Assn. v. Aorta · filed 2019-10-02(a)(8)

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

CPLR 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

Bank of Am., N.A. v. Batson · filed 2019-10-09(a)(8)

Accordingly, we agree with the determination of the Supreme Court to deny that branch of the defendant's cross motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction.

Luo v. Wang · filed 2019-10-16(a)(8)

Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion and to deny, without a hearing, those branches of the defendant's cross motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in appearing and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction ( see NYCTL 2009-A Trust v Tsafatinos , 101 AD3d 1092; Citimortgage, Inc. v Phillips , 82 AD3d at 1033).

CPLR 3211(a)(8) permits dismissal when the court lacks personal jurisdiction, including when the plaintiff fails to effect proper service.

Parisien v. American Ind. Ins. Co. · filed 2019-10-25(a)(8)

The branch of defendant's motion seeking to dismiss the complaint on the ground that plaintiff failed to properly serve defendant should have been granted. ... In the absence of proper service, no personal jurisdiction was acquired over the defendant[ ]" [*2] ( Klein v Educational Loan Servicing, LLC , 71 AD3d 957 , 958 [2010]; see Active Care Med. Supply Corp. v Kemper Ins. Co. , 63 Misc 3d 163 [A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, with a hearing warranted when specific facts rebut the presumption of proper service.

HSBC Bank USA, N.A. v. Assouline · filed 2019-11-06(a)(8)

The foregoing detailed averments were sufficient to rebut the process server's affidavit and to warrant a hearing on the issue of whether service was properly made ( see Sinay v Schwartzman , 148 AD3d 1068, 1070; Citibank, N.A. v Balsamo , 144 AD3d 964, 965; Velez v Forcelli , 125 AD3d 643, 644; Saxon Mtge. Servs., Inc. v Bell , 63 AD3d 1029).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff fails to prove proper service at a hearing.

Lehman Bros. Bank v. Hickson · filed 2020-09-16(a)(8)

It is the plaintiff that bears the burden at the hearing to establish by a preponderance of the evidence that personal jurisdiction was acquired over the defendant ( see Aurora Loan Servs., LLC v Gaines , 104 AD3d 885, 886). Here, the transcript of the hearing reflects that VVS1 failed to satisfy its burden as it did not present any evidence or testimony whatsoever. ... Accordingly, we agree with the Supreme Court's determination to grant those branches of Hickson's motion which were pursuant to CPLR 5015(a)(4) to vacate so much of the judgment of foreclosure and sale as was against her and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction; a defendant challenging service must rebut a process server’s affidavit with specific facts to warrant an evidentiary hearing.

U.S. Bank N.A. v. Itshak · filed 2020-12-02(a)(8)

Nevertheless, the defendant failed to rebut the presumption of proper service established by the affidavit of the plaintiff's process server. ... Accordingly, those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate so much of the October 21, 2016 order as granted the plaintiff's motion for an order of reference on default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, were properly denied.

CPLR 3211(a)(2) permits dismissal of a declaratory judgment claim when the court lacks jurisdiction to grant the requested relief.

Stoutenburg v. Bishop · filed 2021-07-23(a)(2)

Thus, the Civil Court should have dismissed plaintiff's cause of action for a declaratory judgment based on a lack of jurisdiction to grant this relief ( see CPLR 3211 [a] [2]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when service of process was invalid.

Carney v. Metropolitan Transp. Auth. · filed 2023-11-14(a)(8)

Because plaintiff did not effect valid service of the summons and complaint, defendants' motion to dismiss was timely. The time for MTA or MABSTOA to file an answer or move to dismiss the complaint never started running because plaintiff never served them with any pleading. Similarly, the time for NYCTA and MTA Bus Company to file an answer or move to dismiss never started running because plaintiff did not include an acknowledgment of receipt with the summons and complaint. Accordingly, Supreme Court erred in finding defendants' motion was untimely and should have granted defendants' motion to dismiss for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when service of process on a defendant was improper.

AMK Capital Corp. v. Cifre Realty Corp. · filed 2023-11-27(a)(8)

As noted above, it is well settled that a motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8) will be granted when it is established that service of process upon a defendant was improper ( Feinstein at 234-235; West at 92; O'Connell at 630-631).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when the plaintiff fails to effectuate service on the defendant.

Gaviola v. Lamarre · filed 2024-03-13(a)(8)

Therefore, as plaintiff failed to effectuate service on Kashman, plaintiff’s complaint as asserted against Kashman must be dismissed in its entirety pursuant to CPLR §3211(a)(8) and CPLR §306- b.

Section 3211(a)(8) permits dismissal of a complaint for lack of personal jurisdiction.

DB Structured Prods., Inc. v. Zaman · filed 2024-05-15(a)(8)

Contrary to the defendant's contention, the Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction ( see Bank of N.Y. Mellon v Chaudhury , 219 AD3d at 679-680; Gottesman v Friedman , 90 AD3d 608, 609-610).

Section 3211(a)(8) permits dismissal of a complaint when the court lacks personal jurisdiction over the defendant.

Bohensky v. 1670 42nd St., LLC · filed 2024-05-15(a)(8)

"Contrary to Goldberger's contention, the Special Referee's finding that the plaintiff met his burden of proving by a preponderance of the evidence that Goldberger was validly served pursuant to CPLR 308(1) should not be disturbed ( see Makmudova v Cohen , 216 AD3d 935). Accordingly, the Supreme Court properly denied those branches of Goldberger's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction ( see Nationstar Mtge., LLC v Dekom , 161 AD3d 995; Citimortgage, Inc. v Stover , 124 AD3d 575)."

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction when service was improper, but conclusory and unsubstantiated rebuttal does not overcome process-server affidavits establishing proper service.

CP-SRMOF II 2012-A Trust v. Turri · filed 2024-06-12(a)(8)

Here the affidavits of the plaintiff's process servers constituted prima facie evidence that Lunsford was properly served pursuant to CPLR 308(2) ( see U.S. Bank Trust, N.A. v Catalano , 215 AD3d 992, 994). Contrary to Lunsford's contention, the affidavits submitted in support of his motion were conclusory and unsubstantiated and, thus, insufficient to rebut the prima facie showing established by the process servers' affidavits ( see Bank of N.Y. Mellon v Lawson , 176 AD3d 1155, 1157). While the affidavits Lunsford submitted identified minor discrepancies in Turri's estimated height and weight, such minor discrepancies were insufficient to rebut the presumption of service ( see US Bank, N.A. v Cherubin , 141 AD3d 514, 516). The Supreme Court, therefore, correctly denied those branches of Lunsford's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when a named defendant is not a legal entity amenable to suit.

Chestnut v. United Methodist Church · filed 2024-07-10(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 ( see Honeyman v Curiosity Works, Inc. , 120 AD3d 1302, 1303; Holtzman v KTB Athletics SB TM , 113 AD3d 656).

A motion to dismiss under CPLR 3211(a)(8) for lack of personal jurisdiction may be denied when the defendants fail to rebut the presumption of proper service.

Bank of N.Y. Mellon Trust Co., N.A. v. Iaboni · filed 2024-09-18(a)(8)

In support of their motion, inter alia, to vacate their default, the defendants' general and speculative assertions, inter alia, that someone "would have been home" at the times of the service attempts more than 12 years prior and that they "would have answered the door" did not constitute a "detailed and specific contradiction of the allegations in the process server's affidavit" ( Federal Natl. Mtge. Assn. v Castoldi , 187 AD3d at 989) sufficient to defeat the presumption of proper service upon them, and, therefore, no evidentiary hearing on the issue was warranted ( see Wilmington Sav. Fund Socy., FSB v Zabrowsky , 212 AD3d at 870; Countrywide Home Loans, Inc. v Smith , 171 AD3d 858, 859-860). ... Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.

A court may grant a motion to dismiss for lack of personal jurisdiction without a hearing when the petitioner fails to establish prima facie that service was proper.

Matter of Taylor v. Town of Ramapo Zoning Bd. of Appeals · filed 2024-10-09(a)(8)

Because the petitioners failed to establish, prima facie, that proper service was made upon the ZBA, no hearing to determine the validity of service of process was required, and the Supreme Court properly granted, without a hearing, the ZBA's motion pursuant to CPLR 3211(a)(8) to dismiss the petition insofar as asserted against it, dismissed the proceeding, and, in effect, denied Keeley's motion for leave to intervene as academic.

Section 3211(a)(8) permits a defendant to seek dismissal for lack of personal jurisdiction.

Ditech Fin., LLC v. Roldan · filed 2024-10-30(a)(8)

Accordingly, the Supreme Court should have denied the defendant's motion, in effect, pursuant to CPLR 3211(a)(8) and 306-b to dismiss the complaint insofar as asserted against him.

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when service was improper and an extension of time to serve is denied.

Druss v. Scher · filed 2025-04-23(a)(8)

The Supreme Court, therefore, should have denied the plaintiff's motion pursuant to CPLR 306-b to extend the time to serve Scher with the summons and complaint and granted that branch of the defendants' cross-motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Scher for lack of personal jurisdiction ( see US Bank N.A. v Fink , 206 AD3d at 861; Nationstar Mtge., LLC v Wilson , 176 AD3d at 1090).

A plaintiff opposing dismissal for lack of personal jurisdiction need only show that facts may exist to support jurisdiction.

Salter v. Meta Platforms, Inc. · filed 2025-06-27(a)(8)

Nevertheless, as we have held, "[i]n order to defeat a motion to dismiss based upon lack of personal jurisdiction, a plaintiff need only demonstrate that facts may exist to exercise personal jurisdiction over the defendant[s]" ( Tucker v Sanders , 75 AD3d 1096, 1096 [4th Dept 2010] [emphasis added & internal quotation marks omitted]; see Best v Guthrie Med. Group, P.C. , 175 AD3d 1048, 1050-1051 [4th Dept 2019]; Williams , 100 AD3d at 153).

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

Nolletti v. Nolletti · filed 2026-05-13(a)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" (Golden Jubilee Realty v Castro, 196 AD3d 680, 682 [internal quotation marks omitted]). ... Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

Class allegations should not be dismissed under CPLR 3211(a)(7) as failing CPLR 901(a)’s certification prerequisites before class certification is considered.

Okeke v. Interfaith Med. Ctr. · filed 2024-02-14(a)(7)

Further, it would be premature to dismiss the class action allegations pursuant to CPLR 3211(a)(7) on the ground that the prerequisites for class certification enumerated under CPLR 901(a) were not satisfied ( see Matter of Long Is. Power Auth. Hurricane Sandy Litig. , 134 AD3d 1119, 1120; Ackerman v New York Hosp. Med. Ctr. of Queens , 127 AD3d at 795).

Section 3211 allows dismissal for failure to state a cause of action and permits discovery when facts essential to oppose the motion may exist.

Cornell University v. Dickerson · filed 1979-06-29(a)(7), (d)

Although one commentator has expressed doubt whether the propriety of maintaining a class suit could be considered on a motion under CPLR 3211 (subd [a]) (2 Weinstein-Korn-Miller, NY Civ Prac, par 902.11), the Appellate Division, Fourth Department, has held the class action requirements of CPLR 901 may indeed be considered on a motion to dismiss under CPLR 3211 (subd [a], par 7) (Wojciechowski v Republic Steel Corp., 67 AD2d 830.) Accordingly, this court will consider whether Mr. Dickerson’s claims state a cause of action under the standards of CPLR 901. ... A motion under CPLR 3211 (subd [d]) should be granted if it appears that facts essential to oppose the motion to dismiss may exist. (Peterson v Spartan Inds., 33 NY2d 463.) Mr. Dickerson has failed to show that such facts may exist.

A CPLR 3211 dismissal of class action allegations is premature before an answer is filed and discovery occurs.

Maddicks v. Big City Props., LLC · filed 2018-07-26

As to the remaining class allegations, the dismissal, at this early stage, before an answer was filed and before any discovery occurred, was premature ( Bernstein v Kelso & Co. , 231 AD2d 314 [1st Dept 1997]).

At the pleading stage, dismissal is not required when allegations made upon information and belief can be ascertained through discovery, and documentary evidence must utterly refute the claim to warrant dismissal.

Gibson v. 526 W. 158th St. Hous. Dev. Fund Corp. · filed 2023-11-14(a)(1) and (a)(7)

Contrary to defendant's contention, dismissal is not required at the pleading stage where allegations made "upon information and belief" can be ascertained through discovery ... the documentary evidence did not utterly refute plaintiff's claim, and under the McDonnell Douglas burden-shifting framework, the parties will have the opportunity to pursue their competing contentions in discovery.

A request for additional discovery before dismissal under CPLR 3211(d) must be raised in the trial court and supported by an evidentiary showing.

McCormick v. Favreau · filed 2011-03-31(d)

Plaintiffs’ claim that Supreme Court should have permitted additional discovery before dismissing the complaint (see CPLR 3211 [d]) was improperly raised for the first time on appeal ...; further, the record includes no evidentiary showing supporting this claim (see Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d 1201, 1202 [2009]).

CPLR 3211(d) requires a party seeking relief because facts needed to oppose dismissal are unavailable to raise the issue in the trial court and show a reasonable basis for believing those facts may exist.

Fletcher v. Boies, Schiller & Flexner, LLP · filed 2010-07-20(d)

Plaintiffs argument that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]), is improperly made for the first time on appeal (see Copp v Ramirez, 62 AD3d 23, 31 [2009], lv denied 12 NY3d 711 [2009]). With no request made to Supreme Court, plaintiff has never made the necessary showing that there is a reasonable basis for her belief that facts essential to opposing dismissal may exist (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 554 [2006]).

Section 3211(d) permits a court to deny or delay a dismissal motion when opposing affidavits show that essential facts may exist but cannot yet be stated.

In re Thomas · filed 2010-04-16(d)

CPLR 3212 (f) and 3211 (d) provide that if it should appear from affidavits submitted in opposition to such motion that “facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained.” ... The request to dismiss or stay this motion to permit further discovery is denied.

Under CPLR 3211(d), unfinished discovery does not defeat a motion to dismiss unless the opponent asserts that facts essential to its opposition may exist but cannot yet be stated.

Art Capital Group, LLC v. Neuhaus · filed 2010-02-25(d)

It is also of no moment that discovery has not been conducted. Plaintiffs have not asserted that facts essential to justify opposition to the motion may have existed but could not be stated (see CPLR 3211 [d]).

A complaint that sufficiently pleads a cause of action survives a motion to dismiss when the defendant’s asserted defense depends on facts that have not yet been explored in discovery, despite supporting affidavits.

Ackert v. David · filed 2009-12-03(a)(7)

Supreme Court properly denied the motion given that the complaint sufficiently pleaded a cause of action against Thomas and the parties have not yet engaged in discovery to determine whether Thomas’s defense under Vehicle and Traffic Law § 388 (2) is applicable, notwithstanding affidavits from Thomas and David submitted in support of the motion (see Valentino v County of Tompkins, 284 AD2d 898, 899 [2001]; Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, 830 [1999]).

A CPLR 3211 dismissal is premature when discovery is needed to determine whether an agency relationship supplies the privity required for a claim.

DiCintio v. DaimlerChrysler Corp. · filed 2001-04-12

In the absence of any discovery, it was premature for the motion court to find, largely in reliance upon the self-serving language in defendants’ agreement, that, as a matter of law, there was no privity between plaintiff and DaimlerChrysler.

CPLR 3211(d) permits a plaintiff to resist dismissal when facts essential to opposing the motion may exist but cannot be stated without disclosure.

Bordan v. North Shore University Hospital · filed 2000-08-14(d)

In opposition to that branch of the defendants’ motion which was to dismiss his cause of action to recover damages pursuant to Labor Law § 740 on the ground that he failed to adequately plead the law, rule, or regulation allegedly violated (see, Labor Law § 740 [2]), the plaintiff demonstrated that “facts essential to justify opposition to [the] motion” may exist but could not be stated without disclosure of information concerning the two surgical patients at issue. Prior to such disclosure, the dismissal of the plaintiffs Labor Law § 740 claim was premature (CPLR 3211 [d]; see, Amigo Foods Corp. v Marine Midland Bank-NY, 39 NY2d 391; Halmar Corp. & Defoe Corp. v Hudson Founds., 212 AD2d 505; Cantor v Levine, 115 AD2d 453).

CPLR 3211(d) allows a court to deny a motion to dismiss without prejudice to renewal after discovery when facts needed to oppose the motion may exist but cannot yet be stated.

Herzog v. Town of Thompson · filed 1995-06-29(d)

CPLR 3211 (d) provides Supreme Court with the discretion to deny a motion to dismiss without prejudice to renewal after discovery if it appears that "facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]; see, Cerchia v V.A. Mesa, Inc., 191 AD2d 377).

CPLR 3211(d) permits discovery before dismissal when the plaintiff sufficiently shows that facts essential to the claim may be uncovered, with leave to renew the motion after discovery.

Halmar Corp. v. Hudson Foundations, Inc. · filed 1995-02-06(d)

However, we conclude that the plaintiff has made a sufficient showing that facts essential to establish such a direct link may be uncovered during discovery proceedings. We, therefore, deny the motion to dismiss in accordance with CPLR 3211 (d) without prejudice to renew it upon the completion of discovery (see, Cerchia v V. A. Mesa, Inc., 191 AD2d 377).

A party seeking further discovery under CPLR 3211(d) must show that it would likely produce additional facts substantiating the defense.

Seiler v. Ricci's Towing Services, Inc. · filed 1994-12-23(d)

In addition, defendants failed to establish that further discovery would likely produce additional facts to substantiate the defense (see, CPLR 3211 [d]; 3212 [f]).

A pre-answer motion to dismiss under CPLR 3211(a)(5) and (7) may be premature when discovery is needed to establish a potentially valid claim.

Weigl v. Quincy Specialties Co. · filed 1993-08-02(a)(5), (a)(7)

In this case, Yeshiva’s motion to dismiss plaintiffs action as against it, pursuant to CPLR 3211 (a) (5) and (7) in lieu of an answer and prior to commencement of disclosure proceedings is premature at this stage.

On a motion to dismiss, a pleading is sufficient when it substantially complies with CPLR 3013, and the court may permit discovery when facts needed to oppose a jurisdictional motion are within the defendant's control.

Ben Soep Co. v. Highgate Hall of Orange County, Inc. · filed 1979-07-13(a)(7), (a)(8), (d)

The sufficiency of a pleading to state a cause of action or defense will generally depend upon whether or not there was substantial compliance with [CPLR] 3013” (Foley v D’Agostino, 21 AD2d 60, 62; see, also, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.36). ... Knowledge of the details of the transaction, revenues derived from commerce and other proof related to the issue of jurisdiction are peculiarly under IIT’s control and are discoverable by plaintiff (CPLR 3211, subd [d]) to meet its burden of establishing jurisdiction (Tonelli v Chase Manhattan Bank, N. A., 49 AD2d 731).

Section 3211 requires a court reviewing a failure to state a cause of action to construe the challenged pleading liberally and consider any cause of action fairly implied by it.

Shields v. School of Law of Hofstra University · filed 1980-08-04(a)(7)

On a motion to dismiss for failure to state a cause of action, the challenged pleading is to be construed liberally and "is deemed to allege whatever cause of action can be implied from its statement by fair and reasonable intendment” (Lupinski v Village of Ilion, 59 AD2d 1050).

Section 3211(d) permits a court to deny a motion to dismiss when facts are unavailable to the opposing party.

Apfelberg v. East 56th Plaza, Inc. · filed 1980-06-27(d)

In addition to the above, this court is denying the defendants’ (except Abrams) motion to dismiss the complaint, under CPLR 3211 (subd [d]) authorizing such action where facts are unavailable to an opposing party.

A plaintiff seeking discovery under CPLR 3211(d) to oppose dismissal must offer more than speculation that the defendant’s files contain a signed writing supporting the alleged contract.

Yorktown Square Associates v. Union Dime Savings Bank · filed 1981-01-28(d)

To defeat the motion to dismiss on CPLR 3211 (subd [d]) grounds, plaintiff must come forth with something more than mere speculation based upon the obvious fact that this defendant is a large bank with many officers who must have communicated with each other and counsel by internal memoranda with respect to the subject real estate transaction (see McCants v Emerol Mfg. Co., 81 NYS2d 770).

Section 3211(d) permits discovery to obtain facts needed to oppose a motion to dismiss.

West Mountain Corp. v. Seasons of Leisure International, Inc. · filed 1981-06-04(d)

It should also be noted that Special Term further erred in failing to grant discovery (pursuant to CPLR 3211, subd [d]) to BRW, to obtain facts needed to oppose COMO’s motion to dismiss (made pursuant to CPLR 3211, subd [a]).

On a pre-answer motion to dismiss as time-barred, the complaint's allegations are accepted as true, and dismissal is premature when discovery may establish an exception to the limitations period.

Wiltshire v. A. J. Robins Co. · filed 1982-06-24(a)(5)

We believe that the motion, which was made prior to answer and discovery, was prematurely granted.

Section 3211(d) permits discovery to oppose a dismissal motion only when the requested facts are shown to be essential to that opposition.

Conklin Development Corp. v. Acme Markets, Inc. · filed 1982-07-29(d)

An order for discovery pursuant to CPLR 3211 (subd [d]) is discretionary and should be granted only upon demonstration that the facts sought are essential to justify opposition to a dismissal motion (see Monarch Liq. Corp. v Merinoff, 79 AD2d 871).

CPLR 3211(d) permits discovery when facts needed to oppose a motion to dismiss may exist but are within the movant’s sole knowledge or possession.

Cosmos Mason Supplies, Inc. v. Lido Beach Associates, Inc. · filed 1983-06-20(d)

When facts are necessary for a party to properly oppose a motion to dismiss, and those facts are within the sole knowledge or possession of the movant, discovery is sanctioned if it has been demonstrated that such facts may exist (CPLR 3211, subd [d]; Amigo Foods Corp. v Marine Midland Bank-N. Y., 39 NY2d 391, 395; Peterson v Spartan Inds., 33 NY2d 463, 466; Wiltshire v Robins Co., 88 AD2d 1097, 1098; West Mountain Corp. v Seasons of Leisure Int., 82 AD2d 931, 932; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:49, p 53).

Section 3211(d) permits denial of a motion to dismiss or a continuance when facts may exist that would defeat the motion.

Turso v. Congel · filed 1983-09-19(d)

In view of the fact that plaintiffs and defendant third-party plaintiff Pyramid Company of Holyoke demonstrated that facts “may exist” to defeat the motions by defendant third-party defendant Holyoke Vanguard, Inc., to dismiss the complaint and third-party complaint, Special Term should have either denied the motions or ordered a continuance to permit the development of further information relative to the personal jurisdiction issue (see CPLR 3211, subd [d]; Peterson v Spartan Ind., 33 NY2d 463, 466).

Section 3211(d) permits disclosure on a motion to dismiss when the plaintiff has made a sufficient, nonfrivolous start toward establishing jurisdiction.

Augsbury Corp. v. Petrokey Corp. · filed 1983-12-08(d)

We find no abuse of discretion in Special Term’s order permitting disclosure pursuant to CPLR 3211 (subd [d]).

On a CPLR 3211 motion, the court views the complaint’s allegations most favorably to the claimant to determine whether they plead a valid basis for relief.

General Motors Acceptance Corp. v. Kalkstein · filed 1984-04-17

Upon the branch of the motion brought under CPLR 3211, the allegations in the amended third-party complaint will be viewed most favorably to the Kalksteins to determine whether they have pleaded a valid basis for relief.

Section 3211(d) permits discovery when facts needed to oppose a motion to dismiss may exist and are solely within the movant’s knowledge or possession.

Cantor v. Levine · filed 1985-12-02(d)

When knowledge of facts is necessary for a party to properly oppose a motion to dismiss, and those facts are within the sole knowledge or possession of the movant, discovery is sanctioned if it has been demonstrated that such facts may exist (CPLR 3211 [d]; Cosmos Mason Supplies v Lido Beach Assoc., 95 AD2d 818).

CPLR 3211(d) permits discretionary discovery when facts essential to oppose dismissal may exist but cannot yet be stated, provided the plaintiff’s position is not frivolous.

Ramsay v. Mary Imogene Bassett Hospital · filed 1985-11-27(d)

An order for discovery pursuant to CPLR 3211 (d) is discretionary (Conklin Dev. Corp. v Acme Mkts., 89 AD2d 769, appeal dismissed 58 NY2d 929; Peri v State of New York, 66 AD2d 949, affd 48 NY2d 734). Such an order should be granted where the plaintiff has made a showing that facts essential to justify opposition to dismissal may exist but cannot then be stated, and has shown his position not to be frivolous (Amigo Foods Corp. v Marine Midland Bank, 39 NY2d 391, 395).

Section 3211(d) permits a court to deny a continuance for discovery when the party seeking it had an earlier opportunity to obtain discovery but delayed.

Copeland v. Weyerhaeuser Co. · filed 1986-07-11(d)

We add only that the court did not abuse its discretion in declining to grant a continuance of the motion in order to permit plaintiffs to obtain discovery (CPLR 3211 [d]). Plaintiffs, on a prior motion to dismiss, were granted leave to replead after obtaining discovery, yet they made no effort to compel discovery until after they amended their complaints and were faced with this second motion to dismiss.

A party opposing dismissal under CPLR 3211(d) must reasonably explain why it cannot state facts essential to its opposition.

Atlas Feather Corp. v. Pine Top Insurance · filed 1987-03-09(d)

The defendant failed to offer any reasonable explanation as to why the facts essential to justify opposition to dismissal of that defense could not be stated (see, CPLR 3211 [d]).

CPLR 3211(d) permits denial of a motion to dismiss when the plaintiff alleges that facts needed to show tolling cannot yet be stated.

Castagnazzi v. Schlecker · filed 1987-04-13(d)

That branch of the motion seeking dismissal on Statute of Limitations grounds was also properly denied, inasmuch as the plaintiffs’ motion papers alleged that the facts necessary to demonstrate that the statute had been tolled could not then be stated (see, CPLR 3211 [d]).

Section 3211(d) permits a continuance for discovery instead of dismissal when a motion challenges whether the complaint states a cause of action.

Spillman v. City of Rochester · filed 1987-12-18(d)

We modify the order appealed from only to the extent that, instead of denying the motion to dismiss the complaint on the ground that it fails to state a cause of action, a continuance be granted until the completion of discovery proceedings (see, CPLR 3211 [d]).

A motion to dismiss an entire pleading must be denied if the pleading contains any valid cause of action.

Bell v. State · filed 1988-07-15

Inasmuch as the motion to dismiss is directed at the entire amended claim, rather than at any particular cause of action, it cannot be granted if the pleading contains any valid cause.

A conclusory claim that discovery might reveal a basis for liability does not prevent dismissal under Section 3211.

Cassidy v. County of Nassau · filed 1989-01-17(d)

The plaintiff’s conclusory allegation that if discovery were permitted, additional information might be revealed which would provide a basis for imposing liability upon the county for the tortious acts of the Sheriff’s Deputies is insufficient to warrant denial of that branch of the county’s cross motion, pursuant to CPLR 3211 (a) (5), which was for dismissal of the complaint as against it (cf., CPLR 3211 [d]; see also, Marshall v Colvin Motor Parts, 140 AD2d 673, 674).

CPLR 3211(d) does not warrant a continuance for discovery when the plaintiff fails to show how further discovery could salvage the claims.

Hoheb v. Pathology Associates of Albany · filed 1989-01-19(d)

In so holding, we note that plaintiff failed to demonstrate how a continuance for further discovery would have salvaged his claims (CPLR 3211 [d]; see, Schumacher v Sea Craft Indus., 101 AD2d 707).

Section 3211(d) permits a hearing and discovery on a motion to dismiss for lack of personal jurisdiction when facts may exist to establish jurisdiction.

Staten Island Hospital v. Alliance Brokerage Corp. · filed 1990-10-15(d)

Under the circumstances of this case, and owing to the lengthy delay in the proceedings, we find that it would be appropriate to remit the matter for a hearing and discovery on the motion pursuant to CPLR 3211 (d) (see, Peterson v Spartan Indus., 33 NY2d 463).

Section 3211(d) permits discovery to oppose dismissal when facts may exist that would defeat the motion.

Banham v. Morgan Stanley & Co. · filed 1991-12-12(d)

This alone should have warranted further discovery on the possibility that facts may exist to confirm defendant’s rightful status as a party to this action.

Section 3211(d) allows further disclosure before dismissal when opposition affidavits show that essential facts may exist but cannot yet be stated; the opponent must show a possibility that disclosure will reveal those facts.

Lancaster v. Colonial Motor Freight Line, Inc. · filed 1992-02-25(d)

In conditionally denying defendants’ cross motion to dismiss for lack of personal jurisdiction, the IAS court was apparently relying on the ground set forth in CPLR 3211 (d), which authorizes such denial where it appears from affidavits submitted in opposition that "facts essential to justify opposition may exist but cannot then be stated”. In the instant case, however, we find that, in light of appellants’ uncontested proof, plaintiff failed to demonstrate the necessary possibility that further disclosure would reveal facts that could render defendants subject to the jurisdiction of the courts of this State and that the cross motion to dismiss should have been granted as a matter of law.

A motion to dismiss under CPLR 3211 does not shield a defendant’s answer from dismissal for failure to appear at a deposition.

Town of Southampton v. Salten · filed 1992-10-26

The defendant’s motion to dismiss pursuant to CPLR 3211 did not in any way immunize the defendant from the dismissal of his answer (see, Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 635, 638).

CPLR 3211(d) permits discovery before dismissal when a plaintiff shows that unavailable facts may exist that would justify denying the motion; the plaintiff need not prove those facts already exist.

Cerchia v. V.A. Mesa, Inc. · filed 1993-03-30(d)

In Peterson v Spartan Indus. (33 NY2d 463), it was stated that under CPLR 3211 (d), a plaintiff opposing a motion to dismiss need only show that facts unavailable to the plaintiff may exist which will justify denial of the motion, and need not demonstrate the actual existence of such facts. Here, discovery may reveal evidence supporting a conclusion that Groupy may be acting as a "dummy” corporation for Mesa so that the latter could avoid payment of plaintiffs commissions (see, Pritchard Servs. v First Winthrop Props., 172 AD2d 394), or that Groupy is Mesa’s agent with respect to the Trio Collezione label (see, Kreutter v McFadden Oil Corp., 71 NY2d 460, 467).

On a motion to dismiss for failure to state a claim, the court treats the complaint’s allegations as true and gives the plaintiff the benefit of reasonable inferences.

Lee v. City of Rochester · filed 1993-07-16(a)(7)

The complaint alleges that Gannett was grossly irresponsible in failing to use methods of verification reasonably calculated to ensure accurate copy. For the purposes of Gannett’s motion, that allegation must be deemed true, and plaintiff is entitled to the benefit of all reasonable inferences that flow therefrom (see, Sanders v Winship, 57 NY2d 391, 394).

Section 3211(d) permits discovery before dismissal when facts needed to oppose the motion may exist and are in the movant’s possession.

Nice v. Combustion Engineering, Inc. · filed 1993-05-28(d)

It appears from the affidavits submitted in opposition to the motion that facts necessary for the plaintiff to oppose the motion properly are within the sole knowledge or possession of the movant. On this record, plaintiff has demonstrated that such facts may exist and that discovery is necessary for a full disclosure (see, CPLR 3211 [d]; Cantor v Levine, 115 AD2d 453, 454; Cosmos Mason Supplies v Lido Beach Assocs., 95 AD2d 818).

A defendant’s affidavits seldom warrant dismissal under CPLR 3211(a)(7) unless they conclusively establish that the plaintiff has no cause of action.

Beltrone v. General Schuyler & Co. · filed 1996-01-25(a)(7)

On a motion to dismiss, however, affidavits submitted by a defendant will seldom if ever warrant the relief he seeks unless the affidavits establish conclusively that plaintiff has no cause of action (see, Rovello v Orofino Realty Co., 40 NY2d 633, 636; see also, Pietrosanto v NYNEX Corp., 195 AD2d 843).

On a motion to dismiss, facts alleged in affidavits submitted by the parties are also deemed true.

Maynor v. Pellegrino · filed 1996-04-11(a)(7)

However, where, as here, additional evidentiary material is submitted in the form of affidavits of the parties, the facts as alleged in the affidavits are also deemed true (see, Joel v Weber, 166 AD2d 130, 135).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s factual allegations as true when assessing whether they state a cause of action.

Pravada v. County of Saratoga · filed 1996-02-01

As to the dismissal of the complaint against the City defendants, we find, upon our review of the record, that Supreme Court properly determined that the factual allegations, accepted as true for the purposes of the motion (see, Rovello v Orofino Realty Co., 40 NY2d 633, 634), state prima facie causes of action for assault, battery, false arrest /imprisonment and intentional infliction of emotional harm.

Dismissal under CPLR 3211(a)(7) is premature when the parties’ submissions raise substantial factual issues requiring a hearing.

Killeen v. Crosson · filed 1996-02-02(a)(7)

In one of their affidavits, defendants sought conversion of their CPLR 3211 (a) (7) motion to one for summary judgment, and at argument plaintiffs made the same request. Although the court did not expressly do so, it, nevertheless, summarily dismissed the complaint, basing its determination upon the conclusion that there is a "significant rational basis” for the salary disparities, and that the court did not find "discrimination as a matter of law in this regard.” For the reasons stated, that determination was premature.

Section 3211(d) permits denial of a motion to dismiss with leave to renew after disclosure when facts essential to opposing the motion may exist but cannot yet be stated.

Pappas v. Pilevsky · filed 1996-03-19(d)

As it appeared that facts essential to justify opposition to defendants’ motion may exist but could not then be stated, the IAS Court properly denied the motion with leave to renew after completion of appropriate disclosure (CPLR 3211 [d]; 3212 [f]; Terranova v Emil, 20 NY2d 493, 497; Simpson v Term Indus., 126 AD2d 484, 486).

When foreseeability is at issue in an indemnification action, it should not be determined on a CPLR 3211 motion to dismiss.

Lexington Building Co. v. S-Fer International Corp. · filed 1996-03-19

At the very least, even assuming that foreseeability is an issue in an action for indemnification, this is a question that should not be determined on a motion for dismissal pursuant to CPLR 3211 (see, Raider v Friedman, 162 AD2d 112).