N.Y. C.P.L.R. § 3211

On a motion under CPLR 3211(a)(7), pleadings are liberally construed, and a complaint should not be dismissed if a cause of action can be discerned, however poorly stated.

Brower v. Will · filed 1996-04-01(a)(7)

It is well settled that on a motion pursuant to CPLR 3211 to dismiss the complaint, the pleadings should be liberally construed (see, CPLR 3026). A complaint should not be dismissed when a cause of action may be discerned, no matter how poorly stated (see, Guggenheimer v Ginsburg, 43 NY2d 268, 275).

On a CPLR 3211 motion challenging a complaint’s facial sufficiency, the court should not make factual findings beyond the pleading.

Lavin v. Kaufman · filed 1996-04-02(a)(7)

However, despite the fact that defendants’ motion was made pursuant to CPLR 3211, challenging the facial sufficiency of the complaint, and did not seek summary judgment dismissal under CPLR 3212, the court reached beyond the four corners of the pleading in dismissing most of the complaint and made factual findings unwarranted at this stage of the proceedings.

On a CPLR 3211 motion to dismiss, the court accepts the alleged facts as true, gives plaintiffs every favorable inference, and asks whether the allegations fit a cognizable legal theory.

Swersky v. Dreyer & Traub · filed 1996-04-30

We must accept the facts, as alleged in the complaint, as true, according plaintiffs the benefit of every favorable inference, and then determine whether "the facts as alleged fit within any cognizable legal theory” (Gabriel v Therapists Unlimited, 218 AD2d 614, 615).

On a motion under section 3211(a)(7), a defendant’s evidence must conclusively establish that the plaintiff has no cause of action to warrant dismissal.

Lawyers' Fund v. Gateway State Bank · filed 1996-05-01(a)(7)

For a defendant to be successful on a motion to dismiss, the evidence the defendant offers must "establish conclusively that plaintiff has no cause of action.”

On a CPLR 3211 motion, pleaded facts receive favorable inferences, but bare legal conclusions and claims that are inherently incredible or flatly contradicted by documentary evidence do not.

Kliebert v. McKoan · filed 1996-06-11(a)(1), (a)(7)

Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference, nevertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not entitled to such consideration (Mark Hampton, Inc. v Bergreen, 173 AD2d 220, lv denied 80 NY2d 788).

Under CPLR 3211 (c), summary judgment dismissing a complaint is premature when the accepted allegations raise an issue of bad faith that warrants discovery.

Schwartz v. Roberts · filed 1996-08-01(c)

In this action involving plaintiffs’ use of a unit in their cooperative residential building for professional purposes, we find that, accepting the facts alleged as true, as we must on a motion to dismiss the complaint (Morone v Morone, 50 NY2d 481, 484), plaintiffs have sufficiently raised an issue of bad faith on the part of the cooperative board (the named defendants) to defeat summary judgment under CPLR 3211 (c). Given the allegations concerning the professional use of three other units in the building, the questionable intentions plaintiffs ascribe to defendants with respect to the latter’s future use of the unit at issue, and the history of prior litigation between the parties, dismissal of the complaint prior to discovery was premature.

To survive a CPLR 3211 motion to dismiss, a plaintiff need not prove the specific details of each element of a properly pleaded claim.

Rogers v. Town of Islip · filed 1996-08-05

Although the plaintiffs will be required, at trial, to prove the specific details of each of the elements (see, Swerdloff v Mobil Oil Corp., 74 AD2d 258, 263), no such detailed showing is required to survive a motion to dismiss pursuant to CPLR 3211.

Factual allegations that a release was procured through fraud can defeat a CPLR 3211 motion to dismiss a complaint based on that release.

Steen v. Bump · filed 1996-11-07

Plaintiff’s factual allegations of fraud in the procurement of the release were sufficient to defeat defendant’s CPLR 3211 motion to dismiss the complaint (see, Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217; see also, Bloss v Va’ad Harabonim, 203 AD2d 36, 37).

A motion to dismiss an entire complaint must be denied if at least one cause of action is legally sufficient.

Canavan v. Chase Manhattan Bank, N. A. · filed 1996-12-23(a)(7)

Here, the defendant’s motion is aimed at the plaintiff’s complaint as a whole and must be denied in its entirety because the complaint asserts at least one cause of action which is legally sufficient.

On a motion to dismiss under CPLR 3211(a)(7), the court must assume the complaint’s allegations are true.

Lauer v. City of New York · filed 1997-01-21(a)(7)

On the branch of the motion to dismiss pursuant to CPLR 3211 (a) (7), all of the allegations must be assumed as true.

CPLR 3211(d) permits a court to deny a motion to dismiss without prejudice to renewal after discovery is completed.

Casalino Interior Demolition Corp. v. Custom Design Data, Inc. · filed 1997-01-27(d)

It was not an improvident exercise of discretion for the court to deny the remainder of the motion without prejudice to renewal after discovery was completed (see, CPLR 3211 [d]).

Section 3211(d) allows a plaintiff to defeat a motion to dismiss by showing that unavailable facts might justify denying the motion.

Dine-A-Mate, Inc. v. J.B. Noble's Restaurant, Inc. · filed 1997-06-05(d)

Furthermore, in order to defeat a motion to dismiss, a plaintiff may show that unavailable facts might exist to justify denial of the motion (see, Peterson v Spartan Indus., 33 NY2d 463, 466; Cerchia v V. A. Mesa, Inc., 191 AD2d 377, 378; see also, CPLR 3211 [d]). Accordingly, we conclude that defendants’ motion should have been denied given, inter alia, the lack of discovery and the allegations plaintiff has already raised as to Norris’ actual and/or apparent authority to act for Applegate and plaintiff’s reliance on same (see generally, Hallock v State of New York, 64 NY2d 224, 231).

Section 3211(d) permits further discovery when facts relevant to a motion to dismiss are solely within the defendant’s knowledge and possession.

ADT Operations, Inc. v. Chase Manhattan Bank · filed 1997-06-25(d)

However, plaintiff is entitled to conduct further discovery on the issue under CPLR 3211 (d), since the facts concerning the bank’s actual use of the confidential information are within its sole knowledge and possession (see, Cantor v Levine, 115 AD2d 453; see also, Washington Steel Corp. v TW Corp., supra; American Medicorp v Continental Ill. Natl. Bank & Trust Co., supra [deposition and document discovery conducted on issue of bank’s dissemination of confidential information]).

On a motion to dismiss under section 3211(a)(7), courts accept the alleged facts as true, give plaintiffs favorable inferences, and ask whether those facts state a cognizable claim.

McGee v. City of Rensselaer · filed 1997-10-18(a)(7)

It is well settled that in response to a motion pursuant to CPLR 3211, pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs (see, Leon v Martinez, 84 NY2d 83, 87). ... On such a motion, the court’s sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint (see, Leon v Martinez, 84 NY2d 82, 87-88; Pietrosanto v NYNEX Corp., 195 AD2d 843, 844).

On a motion to dismiss under CPLR 3211(a)(7), courts must read the complaint and supporting papers liberally when assessing whether the allegations support a cause of action.

Tenuto v. Lederle Laboratories, Division of American Cyanamid Co. · filed 1997-10-23(a)(7)

The courts below too restrictively read plaintiffs’ allegations contained in the complaint, bill of particulars and other papers.

Section 3211(d) permits discovery before dismissal into defendants’ knowledge of facts relevant to the claim.

Sharon B. v. Reverend S. · filed 1997-11-19(d)

Further, plaintiff should have the opportunity to conduct discovery concerning the knowledge of the Diocese and Parish, and their officers and administrators, regarding prior conduct of Reverend S. (see, CPLR 3211 [d]).

Section 3211(d) permits discovery before dismissal when facts essential to opposing the motion may exist but cannot yet be stated.

Marcus Dairy, Inc. v. Jacene Realty Corp. · filed 1997-12-22(d)

The disposition of this matter by summary dismissal under CPLR 3211 (a) (7) is premature. It appears from the documentation and brief deposition testimony submitted by the plaintiff, that facts essential to justify opposition to the motion of Columbia Equities, Ltd. to dismiss may exist, but cannot now be stated, and that discovery is required (see, CPLR 3211 [d]).

Section 3211(a)(7) requires a liberal construction of the complaint when deciding whether it states a cause of action.

Rushford v. Facteau · filed 1998-02-26(a)(7)

We also reject defendant’s contention that dismissal of the complaint was required by virtue of plaintiffs’ assertion of negligence claims in a contractual action. We are required to afford plaintiffs a liberal construction of the complaint (see, Fort Ann Cent. School Dist. v Hogan, 206 AD2d 723, 724).

On a motion to dismiss under CPLR 3211, the pleading is liberally construed.

Gerson v. Giorgio Sant'Angelo Collectibles, Inc. · filed 1998-04-03

On a motion to dismiss pursuant to CPLR 3211, a pleading is to be liberally construed (CPLR 3026).

Section 3211(d) requires a party seeking discovery before dismissal to show that discovery could uncover legally relevant information.

Gladliz, Inc. v. Castiron Court Corp. · filed 1998-05-19(d)

Gladliz’s request for permission to conduct discovery pursuant to CPLR 3211 (d) is denied because it has failed to show that discovery would lead to or uncover any legally relevant information.

On a motion to dismiss under CPLR 3211, the complaint’s factual allegations are deemed true.

Commissioner of the Department of Social Services v. Spellman · filed 1998-04-30

Inasmuch as the motion to dismiss is brought pursuant to CPLR 3211, the factual allegations of the complaint are deemed to be true.

A party seeking discovery to oppose a motion to dismiss must show that facts essential to its opposition may exist but cannot yet be stated.

Poughkeepsie Galleria Co. v. Aetna Life Insurance · filed 1998-09-30(d)

Further, plaintiff’s cross motion for discovery is denied, plaintiff having failed to establish that “facts essential to justify opposition may exist but cannot then be stated”.

A party seeking discovery to oppose a motion to dismiss must show in an affidavit that facts essential to its opposition may exist but cannot then be stated.

Smith v. Clark · filed 2000-04-24(d)

The Plaintiffs have not set forth in any of their affidavits that facts essential to justify opposition may exist but cannot then be stated. The affidavits and documentation submitted demonstrate that the defendants are entitled to the relief requested as determined in this decision.

CPLR 3211(d) requires a party seeking discovery before a motion to dismiss is decided to show that facts essential to opposing the motion may exist.

Rothlein v. W.W. Norton & Co. · filed 2000-06-13(d)

Furthermore, plaintiffs contention is unavailing that he should be allowed discovery before the motion by defendants Gibson and WW Norton is decided. First, plaintiff has not shown that there may be facts in existence essential to justify opposition to the motion, as required by CPLR 3211 (d).

On a motion to dismiss under CPLR 3211, the court accepts the complaint’s factual allegations as true and gives the plaintiff the benefit of every possible inference.

Benedict v. Whitman Breed Abbott & Morgan · filed 2001-04-02

Accepting all factual allegations of the complaint as true, as the court must on a motion to dismiss, and according the plaintiffs the benefit of every possible inference (see, CPLR 3211; Cron v Hargro Fabrics, 91 NY2d 362; Leon v Martinez, 84 NY2d 83), we find that the complaint states legally cognizable claims, inter alia, to recover damages for legal malpractice, breach of fiduciary duty, and unjust enrichment.

Section 3211(d) does not require discovery before dismissal when the evidence needed to oppose the motion is available from the plaintiff’s own physicians and the plaintiff has had time to obtain it.

Brown v. Rochester General Hospital · filed 2002-03-15(d)

Finally, we reject plaintiffs contention that the court erred in granting defendants’ motion without allowing plaintiff an opportunity to conduct discovery to enable him to oppose the motion. The necessary evidence was not in the exclusive control of defendants; rather, any relevant information would have come from plaintiffs treating physicians. The court adjourned the return date on defendants’ motion on two occasions to allow plaintiff the opportunity to obtain his medical records or affidavits from his treating physicians (see, CPLR 3211 [d]).

A claim of entitlement to discovery under CPLR 3211(d) may be rejected as meritless.

Linden v. Moskowitz · filed 2002-05-02(d)

Appellant’s claim that she is entitled to discovery under CPLR 3211 (d) is without merit (see, Vargas v 1387 Grand Concourse Realty, 288 AD2d 24).

CPLR 3211(d) leaves a request for further discovery on a motion to dismiss to the court’s discretion.

Fitz-Gerald v. Donaldson, Lufkin & Jenrette · filed 2002-05-14(d)

The IAS court properly exercised its discretion in denying plaintiffs request for further discovery pursuant to CPLR 3211 (d) (see, eg., Klein v Jamor Purveyors, 108 AD2d 344, 350.

On a motion to dismiss, pleaded facts receive every favorable inference, but bare legal conclusions do not.

Tyras v. American Information Network, Inc. · filed 2002-06-10(a)(7)

Although the facts pleaded are to be presumed true and accorded every favorable inference, bare legal conclusions are not entitled to any such consideration (see Rattenni v Cerreta, 285 AD2d 636; Mayer v Sanders, 264 AD2d 827).

Section 3211(d) requires a party seeking further discovery to show that facts essential to oppose dismissal may exist but cannot yet be stated.

Andrew Greenberg, Inc. v. Sir-Tech Software, Inc. · filed 2002-09-05(d)

Although it may be that further discovery would have uncovered a basis for personal jurisdiction over defendants, plaintiff sought no relief under CPLR 3211 (d) and made no showing that facts essential to justify opposition to the motion to dismiss may exist but could not be stated {see Peterson v Spartan Indus., 33 NY2d 463, 466).

On a motion to dismiss under § 3211(a)(7), the court construes the pleading liberally and accepts its allegations as true.

Samide v. Roman Catholic Diocese · filed 2003-01-03(a)(7)

It is well settled that in considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded liberal construction, and the allegations in the complaint are accepted as true (see, Leon v Martinez, 84 NY2d 83, 87-88; Wiener v Lazara Freres & Co., 241 AD2d 114, 120).

On a CPLR 3211(a) motion to dismiss, the court must accept the complaint’s allegations as true and give them every favorable inference.

District Council No. 9 v. Reich · filed 2003-11-06(a)

Since the motions by third-party defendants are made pursuant to CPLR 3211 (a), the court must read the allegations of the third-party complaint as true and give them every favorable inference (Leon v Martinez, 84 NY2d 83 [1994]).

On a CPLR 3211 motion to dismiss, the court accepts the alleged facts as true and gives the plaintiff every possible favorable inference.

Harrogate House Ltd. v. Jovine · filed 2003-12-02

Finally, accepting the facts alleged as true and affording plaintiffs the benefit of every possible favorable inference, as we must in passing upon a motion to dismiss pursuant to CPLR 3211 (see Leon v Martinez, 84 NY2d 83, 87 [1994]), plaintiffs have pleaded a viable cause of action for breach of contract against defendant.

A prediscovery CPLR 3211 motion may be denied when discovery is needed to determine whether the defendant may be liable.

Damaska v. Kandemir · filed 2003-11-13

Defendants’ prediscovery motion to dismiss pursuant to CPLR 3211 was properly denied as to plaintiffs third cause of action, which seeks to impose liability upon defendant-appellant Jennifer Kandemir and defendant Advanced Derma Tech, a limited liability company allegedly co-owned and operated by Jennifer Kandemir and her husband defendant Selcuk Kandemir, for the husband’s alleged tortious conduct while rendering treatment to plaintiff, a client of the company. Although the record indicates that Advanced Derma Tech is a limited liability company, which would generally preclude liability against Jennifer Kandemir (see Limited Liability Company Law § 609 [a]), at this prediscovery stage, it cannot be determined whether Jennifer Kandemir’s role in the closely held company and/or her knowledge or conduct with regard to the incidents of sexual harassment and abuse in question might nevertheless result in liability. Discovery must be completed before such determination is made.

Under CPLR 3211(d), discovery does not delay dismissal when the requested evidence could help prove the alleged conduct but could not cure the complaint’s pleading defects.

School of Visual Arts v. Kuprewicz · filed 2003-12-22(d)

Finally, plaintiffs argue that Kuprewicz’s motion to dismiss should be denied under CPLR 3211 (d) pending further discovery on the ground that facts essential to justify opposition may exist but cannot be stated. ... Although the information sought by plaintiffs may help prove that Kuprewicz committed the conduct alleged in the complaint, there is no reason to believe that it would help plaintiffs to establish that the causes of action being dismissed are viable, or, more specifically, that it would help plaintiffs rectify the pleading defects in the complaint.

Section 3211(d) does not warrant jurisdictional discovery when the plaintiff identifies no grounds to believe unavailable facts could establish jurisdiction.

Donetto v. S.A.R.L. De Gestion Pierre Cardin · filed 2004-05-04(d)

Plaintiff cross moves for discovery pursuant to CPLR §3211(d). Viewing plaintiff's allegations in the light most favorable to plaintiff's assertion of jurisdiction over Mr. Cardin, there is nothing to suggest the existence of any facts unavailable to plaintiff that would provide a basis for such jurisdiction. The complaint contains no factual allegations that would form a colorable basis for piercing the corporate veil to assert New York jurisdiction over Pierre Cardin personally. In the absence of any articulated grounds, this court declines to subject the individual defendant to a discovery proceeding in the hope that some basis for personal jurisdiction/liability for allegedly improper corporate conduct will surface.

Section 3211(d) permits discovery before dismissal when facts essential to opposing the motion may exist but cannot yet be stated.

A. Brod, Inc. v. Worldwide Dreams, L.L.C. · filed 2004-05-07(d)

CPLR 3211(d) permits discovery preceding the possible dismissal of a claim where "facts essential to justify opposition may exist but cannot then be stated."

Section 3211(d) requires a party seeking further discovery to show that it may reveal facts essential to opposing the motion to dismiss.

Bouley v. Bouley · filed 2005-06-10(d)

Finally, we reject plaintiffs contention that the motion should have been denied on the ground that further discovery was required. We conclude that plaintiff has not established that additional discovery would disclose facts “essential to justify opposition” to defendant’s motion (CPLR 3211 [d]; ...).

Section 3211(d) permits discovery before dismissal only when the opposing party establishes that the facts needed to oppose the motion are solely in the movant’s possession.

Scotto Princeton LLC v. Felsen Associates, Inc. · filed 2005-12-27(d)

A motion to dismiss should be denied and discovery permitted only when the party opposing the motion establishes that knowledge of the facts needed to oppose the motion is solely and exclusively in the possession of the movant.

Section 3211(d) permits a court to deny a motion to dismiss when facts essential to oppose it may exist but cannot yet be stated.

Putter v. North Shore University Hospital · filed 2006-01-10(d)

Although the plaintiffs have not, on this record, established their entitlement to equitable estoppel, the court may deny a motion to dismiss the complaint where “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]).

On a motion to dismiss under CPLR 3211(a)(7), alleged facts are accepted as true and plaintiffs receive every favorable inference; dismissal is improper when the complaint adequately alleges viable causes of action.

Delaney v. City of Mount Vernon · filed 2006-04-04(a)(7)

Furthermore, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rochdale Vil. v Zimmerman, 2 AD3d 827 [2003]; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]), the complaint “adequately alleged for pleading survival purposes” causes of action alleging negligence, gross negligence, and fraud (Leon v Martinez, supra at 88).

CPLR 3211(a)(7) permits dismissal when the pleadings are insufficient to state a cause of action, judged by reasonable inferences from the complaint.

Pepler v. Coyne · filed 2006-10-17(a)(7)

“The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained” (Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46, 48 [1990]; see Feinberg v Bache Halsey Stuart, 61 AD2d 135, 137-138 [1978]; Edwards v Codd, 59 AD2d 148, 149-150 [1977]).

Section 3211(a)(7) requires a pleading to allege facts from which damages attributable to the defendant’s conduct may reasonably be inferred to survive a pre-answer dismissal motion.

Lappin v. Greenberg · filed 2006-11-14(a)(7)

To survive a CPLR 3211 (a) (7) pre-answer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred (InKine Pharm. Co. v Coleman, 305 AD2d 151, 152 [2003]; Kocak v Egert, 280 AD2d 335, 336 [2001]; IMO Indus. v Anderson Kill & Olick, 267 AD2d 10, 11 [1999]; cf. Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [2002]).

On a motion to dismiss for failure to state a cause of action, the court liberally construes the pleadings, accepts the complaint’s allegations as true, and gives the plaintiff every possible inference.

Westbank Contracting, Inc. v. Rondout Valley Central School District · filed 2007-12-20(a)(7)

In the current procedural context, the pleadings are liberally construed, allegations in the third-party complaint accepted as true, and the third-party plaintiff provided the benefit of every possible inference (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Team Mktg. USA Corp. v Power Pact, LLC, 41 AD3d 939, 940 [2007]).

Section 3211(d) requires a party opposing dismissal to show that facts essential to its opposition may exist but cannot yet be stated.

Kantrowitz v. Allstate Indemnity Co. · filed 2008-02-26(d)

In opposition to the appellant’s motion pursuant to CPLR 3211 (a) (7), the plaintiff failed to establish that “facts essential to justify opposition may exist but [could not] then be stated” (CPLR 3211 [d]).

Section 3211(d) allows a party opposing dismissal to identify essential facts that may exist but cannot yet be stated.

Lancaster v. Town of East Hampton · filed 2008-09-23(d)

The plaintiff did not assert in her affidavit in opposition pursuant to CPLR 3211 (d) that facts unavailable to her, essential to justify opposition, may exist but could not then be stated.

On a CPLR 3211 motion to dismiss, the court liberally construes the pleadings, accepts the alleged facts as true, and asks whether they fit a cognizable legal theory.

State v. Myers · filed 2008-10-21

The scope of review relevant to a motion to dismiss pursuant to CPLR 3211 is limited. ... When examining such a motion, a court must liberally construe the pleadings in plaintiffs favor, accept the facts alleged as true, and determine whether the facts alleged fit within any cognizable legal theory (id. at 366; Kovach v Hinchey, 276 AD2d 942, 944 [3d Dept 2000]).

A party opposing dismissal as premature must show that additional discovery would disclose facts essential to opposing the motion.

Gillies v. National Fire Insurance · filed 2008-11-14(d)

“[P]laintiff has not established that additional discovery would disclose facts ‘essential to justify opposition’ to defendant’s motion” (Bouley v Bouley, 19 AD3d 1049, 1051 [2005], quoting CPLR 3211 [d]).

CPLR 3211(d) permits a court to stay or deny a dismissal motion pending discovery when the party seeking discovery gives an evidentiary basis for believing it will reveal material facts.

Rochester Linoleum & Carpet Center, Inc. v. Cassin · filed 2009-04-16(d)

Initially, a motion to dismiss or one for summary judgment may be stayed or denied pending further discovery (see CPLR 3211 [d]; 3212 [f]). To obtain such relief, plaintiff was obliged to provide some evidentiary basis for its claim that further discovery would yield material evidence and also “demonstrate how further discovery might reveal material facts in the movant’s exclusive knowledge” (Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652 [1999]; see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]).

CPLR 3211(d) permits a continuance for discovery into facts bearing on personal jurisdiction.

People v. Jaguar Sales, LLC · filed 2009-04-21(d)

The Supreme Court providently granted that branch of the petitioner’s cross motion which was pursuant to CPLR 3211 (d) for a 90-day continuance to conduct discovery to determine whether Jaguar Sales, LLC, doing business as Jaguar Sales, and Premier Sales, had sufficient contacts with, and activities in, the State of New York to be subject to personal jurisdiction in New York (see Peterson v Spartan Indus., 33 NY2d 463 [1974]).

CPLR 3211(d) requires facts warranting discovery before a court grants discovery on a motion to dismiss.

Matz v. Prospect Energy Corp. · filed 2009-06-30(d)

Plaintiff failed to show any facts as to warrant discovery pursuant to CPLR 3211 (d) (see e.g. Fitz-Gerald v Donaldson, Lufkin & Jenrette, 294 AD2d 176 [2002]).

A CPLR 3211(a)(5) motion based on the statute of frauds may be denied with leave to renew after discovery.

Silver v. Silver · filed 2009-06-16(a)(5)

Additionally, the Supreme Court properly denied those branches of the defendants’ motion which were to dismiss pursuant to CPLR 3211 (a) (5) based on a statute of frauds defense, and for summary judgment, with leave to renew after discovery.

On a CPLR 3211 motion to dismiss, courts liberally construe the pleadings, accept the plaintiff’s factual allegations as true, and draw inferences in the plaintiff’s favor.

Mostel v. Petrycki · filed 2009-09-02

On a motion to dismiss pursuant to CPLR 3211, the pleadings should be liberally construed, the facts alleged by the plaintiff should be accepted as true, and all inferences should be drawn in the plaintiffs favor.

On an unconverted preanswer motion to dismiss, the court accepts the plaintiff’s allegations as true and gives them the benefit of every reasonable inference.

Alaimo v. McGeorge · filed 2010-01-07(a)(7)

Although plaintiffs’ evidence may be insufficient to withstand a motion for summary judgment, on an unconverted preanswer motion to dismiss, plaintiffs’ allegations are accepted as true and are entitled to the benefit of every reasonable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

On a CPLR 3211 motion to dismiss, courts construe the pleading liberally, accept its factual allegations as true, and give the plaintiff every favorable inference.

Rock City Sound, Inc. v. Bashian & Farber, LLP · filed 2010-06-22

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). Courts must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

On a motion to dismiss an article 78 petition under subsection (a)(7), the petition’s allegations are treated as true and given every favorable inference.

Eastern Oaks Development, LLC v. Town of Clinton · filed 2010-08-24(a)(7)

In considering a motion to dismiss a CPLR article 78 proceeding pursuant to CPLR 3211 (a) (7) and 7804 (f), all of the allegations in the petition are deemed to be true and are afforded the benefit of every favorable inference (see Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621 [2009]; Matter of Alabi v Community Bd. No. 2 of Brooklyn, 17 AD3d 459 [2005]).

On a motion to dismiss under CPLR 3211(a)(7), the pleading receives a liberal construction, and its alleged facts are accepted as true with every favorable inference for the plaintiff.

Shaw v. Club Managers Ass'n of America, Inc. · filed 2011-05-10(a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading must be afforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87 [1994]). The facts as alleged in the complaint are accepted as true, with the plaintiff accorded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88).

CPLR 3211(d) does not warrant discovery into the parties’ intent when their agreement is unambiguous and parol evidence would be inadmissible.

Ashwood Capital, Inc. v. OTG Management, Inc. · filed 2012-07-10(d)

Nor is Ashwood entitled to discovery regarding the parties’ intent pursuant to CPLR 3211 (d). Because the agreement is clear and complete on its face, “[a]ny such discovery would simply be an opportunity for plaintiff to uncover parol evidence to attempt to create an ambiguity in an otherwise clear and unambiguous agreement” (RM Realty Holdings Corp. v Moore, 64 AD3d 434, 437 [2009]). Absent a finding of ambiguity in the agreement, discovery would be unnecessary, as any parol evidence would be inadmissible (id.).

CPLR 3211(a) permits dismissal of a claim when the complaint fails to allege facts sufficient to put the defendants on notice that the claim is asserted against them.

Hamlet at Willow Creek Development Co. v. Northeast Land Development Corp. · filed 2012-10-03(a)

As to Pav-Co and its officer, the defendant William Fehr, even with the most liberal interpretation (cf. 115 Austin Ave, LLC v City of Yonkers, 37 AD3d 684 [2007]), the complaint fails to allege facts against Pav-Co and Fehr sufficient to place them on notice that the plaintiffs were asserting the replacement-fill claim against them. Accordingly, the Supreme Court also should have granted that branch of Pav-Co and Fehr’s cross motion which was pursuant to CPLR 3211 (a) to dismiss that claim insofar as asserted against them.

Section 3211 requires liberal construction of pleadings on a motion to dismiss.

Maestro West Chelsea SPE LLC v. Pradera Realty Inc. · filed 2012-10-09

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction.”

CPLR 3211(d) requires a party seeking discovery before dismissal to identify the facts warranting it and explain their relevance to opposing the motion.

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire · filed 2013-05-16(d)

Finally, although Longmire contends that the motion should have been denied pursuant to CPLR 3211 (d) because, among other things, depositions had not yet been taken of Warshaw attorneys who handled the underlying suit, Longmire does not specify what facts warrant further discovery or how they are relevant to his opposition to the motion to dismiss his counterclaim.

On a motion to dismiss under CPLR 3211(a)(7), pleadings are liberally construed.

REYNOLDS, ROBERT A. v. FERRANTE, D.C., CHRISTOPHER S. · filed 2013-06-07(a)(7)

On a motion to dismiss pursuant to CPLR 3211, pleadings are to be liberally construed (see Leon v Martinez, 84 NY2d 83, 87; see also CPLR 3026).

On a CPLR 3211 motion, dismissal cannot rest on an unsupported assumption that the plaintiff would have suffered the same harm regardless of the defendant’s conduct when discovery is needed to resolve that issue.

Delgado v. Bretz & Coven, LLP · filed 2013-06-20

The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice.

On a CPLR 3211 motion to dismiss, pleadings are liberally construed.

RAMOS, BURT G. v. HUGHES, TIMOTHY P. · filed 2013-09-27

On a motion to dismiss pursuant to CPLR 3211, pleadings are to be liberally construed (see Leon v Martinez, 84 NY2d 83, 87; see also CPLR 3026).

CPLR 3211 permits the court to consider evidence submitted on a motion to dismiss to remedy defects in the complaint and determine whether the alleged facts fit a cognizable legal theory.

Bautista v. 85th Columbus Corp. · filed 2013-11-26

Accordingly, the court may freely consider evidentiary material submitted on the motion in order to remedy any defects in the complaint (Vorel v NBA Props., 285 AD2d 641 [2d Dept 2001]), with the salient issue for determination being “whether the facts as alleged fit within any cognizable legal theory.” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001].)

Subdivision (d) does not allow a party to defer a dismissal motion for discovery when the facts needed to oppose it are already in that party’s possession.

Plain v. Vassar Bros. Hospital · filed 2014-03-26(d)

Moreover, since the facts essential to opposing Mid Hudson’s motion in this regard were in the possession of the plaintiff, they did not constitute facts which “[could not] then be stated” (CPLR 3211 [d]).

Section 3211(a)(7) permits dismissal before discovery when the plaintiff already has the facts needed to describe its alleged services and show whether its claims fall outside the statute of frauds.

JF Capital Advisors, LLC v. Lightstone Group, LLC · filed 2014-03-25(a)(7)

Finally, contrary to plaintiffs assertions, dismissal of its claims before discovery is not premature, because it had available all of the facts necessary to describe the services it allegedly performed, and thus to establish whether its claims fell outside of the statute of frauds.

A CPLR 3211(a)(7) motion need not await discovery when the plaintiff offers no evidentiary basis to suggest that discovery may reveal relevant evidence.

Clarke v. Hirt · filed 2014-11-03(a)(7)

The plaintiffs hope that further discovery would reveal the existence of triable issues of fact regarding maintenance of the vehicle, negligent leasing, or active negligence on the part of TLT is insufficient to delay determination of the motion (see Talon Air, Inc. v Kevin Francis Madden, 80 AD3d 746 [2d Dept 2011] ). The plaintiff failed to offer an evidentiary basis to suggest that further discovery may lead to relevant evidence (see Woodard v Thomas, 77 AD3d 738 [2d Dept 2010]).

Section 3211(d) does not warrant denying a motion to dismiss based on the mere hope that discovery will reveal facts supporting the claim.

Cracolici v. Shah · filed 2015-04-02(d)

The mere hope that discovery may reveal a course of continuous treatment with Dr. Khan, does not warrant denial of the motion (see CPLR 3211 [d]).

On a CPLR 3211 motion under either subdivision (a)(5) or (a)(7), the court gives the complaint a liberal construction, accepts its allegations as true, and draws favorable inferences for the plaintiff.

Johnson v. Proskauer Rose LLP · filed 2015-04-30(a)(5), (a)(7)

Because these appeals arise out of a motion brought pursuant to CPLR 3211, our analysis of plaintiffs’ claims is limited to the four corners of the pleading, the allegations of which we must give a liberal construction and accept as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). ... These guidelines apply not only to a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), but also to dismiss based on the statute of limitations pursuant to CPLR 3211 (a) (5) (New York Tel. Co. v Mobil Oil Corp., 99 AD2d 185, 192 [1st Dept 1984]).

On a motion to dismiss under subsection (a)(7), pleaded facts receive favorable inferences, but bare legal conclusions and factual claims flatly contradicted by the record do not.

Matter of Gottlieb v. City of New York · filed 2015-06-03(a)(7)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, “bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

CPLR 3211(d) does not permit discovery to remedy defects in a pleading.

Naderi v. North Shore-Long Island Jewish Health System · filed 2016-01-26(d)

Plaintiff’s cross motion for discovery pursuant to CPLR 3211 (d) was correctly denied, as “he may not use discovery ... to remedy the defects in his pleading” (Weinstein v City of New York, 103 AD3d 517, 517-518 [1st Dept 2013]).

A court may deny further discovery under CPLR 3211(d) when the plaintiff does not specify how it would enable a sufficient claim.

Sitomer v. Goldweber Epstein, LLP · filed 2016-05-31(d)

The motion court providently exercised its discretion in denying plaintiff’s request for further discovery, since he failed to specify how additional discovery would enable him to state a sufficient claim with respect to the dismissed allegations (see CPLR 3211 [d]; Putter v North Shore Univ. Hosp., 7 NY3d 548, 554 [2006]).

CPLR 3211(d) does not warrant further discovery when the complaint itself rules out the writing needed to support the claim.

Holahan v. 488 Performance Group, Inc. · filed 2016-06-02(d)

We reject plaintiff’s assertion that the motion court should have allowed her to conduct further discovery under CPLR 3211 (d) so that she could obtain documents confirming that her employment was renewed after the expiration of her employment agreement in December 2007. As noted, any renewal was required to he in writing, and plaintiff alleged in her complaint that the parties did not execute any further written amendments to the employment terms after the expiration of the December 2007 agreement. Accordingly, there was no basis for further discovery.

On a CPLR 3211 motion to dismiss an article 78 petition, the court takes the petitioner's alleged facts as true and resolves ambiguous allegations in the petitioner's favor.

Matter of Castro v. Schriro · filed 2016-06-28

Because this case arises on a motion to dismiss this article 78 petition under CPLR 3211, we take the facts alleged by petitioner to be true. Where the allegations are ambiguous, we resolve the ambiguities in petitioner's favor.

On a motion to dismiss under CPLR 3211, the court construes the pleading liberally.

Rasheed Al Rushaid v. Pictet & Cie · filed 2016-11-22

[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction.

CPLR 3211(d) does not warrant additional discovery when it would not reveal facts essential to opposing dismissal or cure a failure to plead a required element.

Spring v. County of Monroe · filed 2017-06-09(d)

To the extent that the court determined pursuant to CPLR 3211 (d) that the County defendants’ motion was premature, we conclude with respect to the legal malpractice cause of action that there was no showing that “additional discovery would disclose facts ‘essential to justify opposition’ to defendants’ motion,” inasmuch as discovery will not reveal an attorney-client relationship between plaintiff and the County attorneys (Bouley v Bouley, 19 AD3d 1049, 1051 [2005]). With respect to the negligence cause of action, additional discovery is not warranted inasmuch as it could not remedy plaintiff’s failure to plead a special duty.

On a motion to dismiss under CPLR 3211(a)(7), a plaintiff need not plead evidentiary facts supporting allegations of malice to overcome a common-interest privilege.

Ferrara v. Esquire Bank · filed 2017-08-16(a)(7)

“[A] plaintiff has ‘no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7)’ ”

Under CPLR 3211(d), an unsubstantiated hope that discovery will salvage a claim is insufficient to defeat a motion to dismiss.

Freeman v. Brecher · filed 2017-11-14(d)

Plaintiff’s unsubstantiated hope that discovery and time will help salvage her claims is insufficient to defeat the motions (see CPLR 3211 [d]; Leonard v Gateway II, LLC, 68 AD3d 408, 410 [1st Dept 2009]).

Section 3211(d) requires a party seeking discovery before dismissal to establish that facts essential to opposing the motion may exist but cannot yet be stated.

Muncil v. Widmir Inn Restaurant Corp. · filed 2017-11-22(d)

Defendant failed, however, to establish that “facts essential to justify opposition [to Morstan’s motion] may exist but cannot then be stated” (CPLR 3211 [d]; see generally Herzog v Town of Thompson, 216 AD2d 801, 803-804 [1995]).

CPLR 3211(d) does not require further discovery before dismissal when the plaintiffs already have a relevant deposition and records and can provide the facts they seek.

Greenstein v. Sol S. Stolzenberg, D.M.D., P.C. · filed 2017-12-12(d)

Plaintiffs’ contention that the motion court should have allowed them to conduct further discovery under CPLR 3211 (d) so that they could investigate the details of the patient’s treatment plan is unavailing. The motion court permitted plaintiffs to depose Berman on the limited issue of continuous treatment, and plaintiffs were also in possession of the patient’s complete dental records. Moreover, the patient, who failed to submit an affidavit in opposition to defendant’s motion to dismiss, should have facts regarding any treatment plan available to her as the recipient of the allegedly negligent dental services.

On a CPLR 3211 motion to dismiss, the court liberally construes the complaint, presumes its factual allegations true, and gives it every possible favorable inference.

Ajoku v. New York State Off. of Temporary & Disability Assistance · filed 2021-10-07

Liberally construing the complaint, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference ( see Doe v Bloomberg, L.P. , 36 NY3d 450, 454 [2021]; Anderson v Edmiston & Co., Inc. , 131 AD3d 416 [1st Dept 2015]), the complaint asserts that Contento was aware of a long chain of discrimination against plaintiff and condoned it.

On a CPLR 3211 motion to dismiss, the court accepts pleaded facts as true, construes the complaint liberally, and gives the plaintiff every favorable inference.

Constantine v. Lutz · filed 2022-04-28

"[o]n a CPLR 3211 motion to dismiss, we must accept the facts as alleged in the [complaint] as true[,] . . . accord [plaintiff] the benefit of every possible favorable inference and afford the pleadings a liberal construction" ( Matter of Lewis v Dagostino , 199 AD3d 1221, 1222 [2021] [internal quotation marks and citations omitted]).

A CPLR 3211(a) motion may be applied to amended counterclaims that supersede the original counterclaims; the motion remains pending if the court has not decided it as applied to the amended pleading.

Westbury Recycling, Inc. v. Westbury Transfer & Recycling, LLC · filed 2022-10-19(a)

Although the parties properly elected to apply the plaintiffs' motion to the amended counterclaims, which superseded the original counterclaims ( see Sobel v Ansanelli , 98 AD3d 1020, 1022; Union State Bank v Weiss , 65 AD3d 584, 585; Ferguson v Sherman Sq. Realty Corp. , 30 AD3d 288; Sage Realty Corp. v Proskauer Rose , 251 AD2d 35, 38; David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:65), the Supreme Court did not address the amended counterclaims or the demand for punitive damages. Accordingly, the plaintiffs' motion, insofar as it pertains to dismiss three of the amended counterclaims and the demand for punitive damages, remains pending and undecided ( see Katz v Katz , 68 AD2d 536, 542-543).

Section 3211(d) permits denial of a motion to dismiss when facts essential to oppose it may exist but cannot yet be stated because they are in the movant’s control.

Truesdell v. Roman Catholic Diocese of Brooklyn, N.Y. · filed 2022-12-01(d)

While the movant argues that plaintiff fails to allege specific facts that it had notice of the priest's criminal proclivities, at this pre-answer stage of the litigation, such information is in the sole possession and control of the movant. Therefore, dismissal of these causes of action was properly denied on this ground as "facts essential to justify opposition may exist but cannot then be stated" ( see CPLR 3211[d]).

CPLR 3211 permits dismissal motions and requires allegations to receive a liberal construction, while bare legal conclusions lacking factual specificity do not suffice.

Berg v. State of New York · filed 2024-06-13(a)(2)

Although consideration of a motion to dismiss pursuant to CPLR 3211 requires a court to "afford the pleadings a liberal construction, take the allegations of the [claim] as true and provide the [claimant] the benefit of every possible inference[*2]," such favorable treatment is not limitless, and "claims consisting of bare legal conclusions with no factual specificity" will not suffice ( F.F. v State of New York , 194 AD3d 80, 83-84 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], appeal dismissed & lv denied 37 NY3d 1040 [2021], cert denied ___ US ___, 142 S Ct 2738 [2022]; accord Easterbrooks v Schenectady County , 218 AD3d at 970).

CPLR 3211(a) does not permit dismissal of counterclaims for lack of capacity when the counterclaimants and opposing parties are all named parties to the action.

EOP Carie Merger Sub, Inc. v. Wanderer · filed 2025-04-23(a)(3)

Here, the Supreme Court erred in concluding, in effect, that Wanderer and Carie Health could not assert counterclaims against EOP and Healixa due to lack of capacity. Wanderer, Carie Health, EOP, and Healixa were all named parties, and thus, Wanderer and Carie Health had the power to assert counterclaims against EOP and Healixa. Therefore, the court should have denied that branch of the motion of EOP, Healixa, and Parker which was pursuant to CPLR 3211(a) to dismiss the counterclaims insofar as asserted by Wanderer and Carie Health against EOP and Healixa.

Lack of capacity to sue is a ground for dismissal that must be raised by motion or it is waived.

City of NY v. State of NY · filed 1995-06-15(a)(3), (e)

The issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived (CPLR 3211 [a] [3]; [e]).

A lack-of-capacity defense must be raised by motion or it is waived.

City of New York v. State · filed 1995-06-15(a)(3); (e)

Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived (CPLR 3211 [a] [3]; [e]).

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks capacity to sue, but that defect does not prevent the corporation from defending an action after the defect is cured.

Tri Terminal Corp. v. CITC Industries, Inc. · filed 1979-07-30(a)(3)

The dismissal ground of CPLR 3211 (subd [a], par 3) becomes the law of the case only on the narrow issue of lack of capacity to sue. If Tri Terminal attempted to bring a second action without curing this defect, it would certainly be precluded. Here, the deficiency is cured in effect since Tri Terminal is not attempting to sue, but to defend. Its lack of capacity to institute a suit does not affect its ability to defend in a suit brought against it.

Section 3211(a)(3) permits a court to dismiss an action when the plaintiff lacks legal capacity to sue.

Emergency Beacon Corp. v. Polish · filed 1979-09-24(a)(3)

In an action, inter alia, to recover damages for legal malpractice and for conspiracy to defraud, defendant Sherman and Citron appeals from so much of an order of the Supreme Court, Westchester County, dated May 5, 1978, as denied its motion to dismiss pursuant to CPLR 3211 (subd [a], par 3), on the ground that plaintiff Emergency Beacon Corporation lacked legal capacity to sue. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and action on behalf of the plaintiff corporation is dismissed.

CPLR 3211(a)(3) permits a lack-of-capacity defense when a town brings an action without the required town board authorization.

Town of Thompson v. Alleva · filed 1980-06-26(a)(3)

Turning to the issue that would have been posited had leave been granted to serve the amended answer, we are compelled to conclude that the action commenced in the name of the Town of Thompson was unauthorized absent a resolution of the town board. Thus, the named plaintiff did not have the legal capacity to initiate the action (CPLR 3211, subd [a], par 3).

Section 3211(a)(3) permits dismissal of a derivative action when a merger leaves the plaintiff no longer a shareholder and thus without capacity to prosecute it.

Rubinstein v. Catacosinos · filed 1983-02-22(a)(3)

Order, Supreme Court, New York County (Ryp, J.), entered September 2, 1982, which, inter alia, denied motions of defendants to dismiss the complaint, is modified, on the law, to the extent of striking all decretal provisions of the order except paragraph (2) which denied defendants’ motions to dismiss for failure to make a demand upon defendant ADDS’ board of directors; defendants’ motions to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 3) for lack of capacity to sue are granted and the complaint is dismissed in its entirety; the motion of defendants Degan, Sideris and Gunnigle to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action against said defendants is granted; and the order is otherwise affirmed, with costs and disbursements to defendants-appellants against plaintiff except that with respect to the cost of reproduction of the record or appendix each set of defendants shall recover only one half the cost thereof, respectively.

Section 3211(a)(3) permits dismissal when a plaintiff lacks capacity to sue, including after a hearing on that issue.

Davis v. Southridge Cooperative Section IV, Inc. · filed 1985-04-29(a)(3)

After a properly conducted hearing, it has been determined that plaintiff lacks capacity to sue, and the complaint was properly dismissed pursuant to CPLR 3211 (a) (3).

A challenge to a plaintiff’s authority to sue may be decided with the merits when the issues are inextricably linked.

Tanjong Shipping, Inc. v. Berke · filed 1985-12-12(a)(3)

What seems clear is that the issue raised by the challenge to his authority to commence this action is inextricably linked with the substantive issues presented by the allegations in the complaint and should be determined together with those dispositive issues.

Section 3211(a)(3) permits dismissal for lack of capacity to sue; a court may treat a request to dismiss on that ground as a motion under the subsection.

Lorisa Capital Corp. v. Gallo · filed 1986-08-04(a)(3)

Accordingly, the order appealed from should be reversed, those branches of the appellant’s motion which sought to vacate the default judgment of foreclosure and sale dated February 24, 1984, and the order of possession dated September 18, 1984, should be granted, the branch of the appellant’s motion which sought to dismiss the action should be deemed one under CPLR 3211 (a) (3) to dismiss upon the ground of the plaintiffs lack of capacity to sue, and should be granted unless within 45 days after service upon it of a copy of the order to be made hereon, with notice of entry, the plaintiff shall have secured reinstatement of its corporate status.

CPLR 3211(a)(3) permits dismissal of a complaint when the plaintiff lacks legal capacity to sue.

Schepmoes v. Hilles · filed 1986-07-07(a)(3)

Accordingly, the plaintiff lacks the legal capacity to bring this action, and the complaint must be dismissed as against ... the appellants (see, CPLR 3211 [a] [3]).

Section 3211(a)(3) permits the validity of an alleged assignment to be left for trial when neither party presents evidence about the assignment at the motion hearing.

Beer v. F. W. Myers & Co. · filed 1990-03-16(a)(3)

The court did not err in finding that the validity of the plaintiffs’ alleged assignment could only be determined at trial. Defendant moved to dismiss under CPLR 3211 (a) (3). Plaintiffs cross-moved for summary judgment treatment under CPLR 3211 (c). Although the parties stipulated to refer all issues to a Judicial Hearing Officer for determination, no evidence was presented at the hearing by either party with respect to an equitable assignment.

CPLR 3211(a)(3) permits dismissal for lack of capacity to sue when the person challenging a conveyance has no interest in the property and the grantor is the real party in interest.

Schneider v. David · filed 1991-01-17(a)(3)

The IAS court erred when it did not dismiss plaintiff’s complaint for lack of capacity to sue and failure to state a cause of action since the real party in interest here is Beatrice.

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks legal capacity to sue in New York.

Pergament Home Centers, Inc. v. Net Realty Holding Trust · filed 1991-03-11(a)(3)

The court should have granted the cross motion to dismiss by Net because Pergament lacked the legal capacity to sue in New York (see, CPLR 3211 [a] [3]).

An escrow agent has capacity to sue to fulfill duties under an escrow agreement.

Longworth v. Ottaiano · filed 1992-12-29(a)(3)

Defendant contends that plaintiff lacks legal capacity to sue. (CPLR 3211 [a] [3].) An escrow agent or depository may bring such actions as are necessary to fulfill his duties. ... Clearly, plaintiff has the capacity to bring this action.

CPLR 3211(a)(3) permits dismissal when bankruptcy has deprived plaintiffs of capacity to sue and substitution cannot cure that incapacity.

Reynolds v. Blue Cross of Northeastern New York, Inc. · filed 1994-12-08(a)(3)

Defendants correctly argue that Supreme Court erred in denying their motion to dismiss as plaintiffs were divested of their legal capacity to sue by virtue of the bankruptcy, the action was not abandoned or "dealt with” and substitution could not cure that incapacity.

Under CPLR 3211(a)(3), a corporation has capacity to sue even if its sole shareholder has received a bankruptcy discharge.

Integrated Trade Activities Corp. v. Grumman International Inc. · filed 1995-10-16(a)(3)

The plaintiff Integrated Trade Activities Corp. correctly argues that it has the legal capacity to commence this action even though its sole shareholder has obtained a discharge in bankruptcy (see, In re Kolinski, 100 Bankr 695; cf, Reynolds v Blue Cross, 210 AD2d 619).

A complaint’s mistaken designation of an adult plaintiff as an infant is a mere irregularity that does not require dismissal for lack of capacity to sue.

MacCaull v. Brown · filed 1999-05-07(a)(3)

Supreme Court properly denied that part of defendant’s motion seeking to dismiss the complaint on the ground of lack of legal capacity to sue (see, CPLR 3211 [a] [3]). Although Eric J. MacCaull was 18 years old at the time of the incident and commencement of the action and thus misdescribed in the caption of the complaint as “an infant”, the court did not err in directing that the caption of the complaint be amended to delete the name of his mother, who sued in her representative capacity as a parent, and to reflect that Eric is the sole plaintiff. The court properly concluded that reference to Eric as an infant was a mistake, that there was no question that Eric was the sole injured party, and that the misdescription constituted a mere irregularity.

CPLR 3211(a)(3) permits dismissal when the plaintiff lacks capacity to sue.

Bankers Trustee Co. v. First Mexican Acceptance Corp. · filed 2000-06-13(a)(3)

Orders, Supreme Court, New York County (Ira Gammerman, J.), entered September 28, 1999 and on or about September 29, 1999, which, in these actions to identify and realize upon collateral pledged pursuant to the subject indentures, granted the motions of defendants and intervenor to dismiss the complaints pursuant to CPLR 3211 (a) (3) on the ground that plaintiff lacked capacity to bring the lawsuits, unanimously affirmed, with costs.

CPLR 3211(a)(3) permits dismissal when individual plaintiffs lack authority to sue on behalf of an entity, but does not bar their claim for direct relief on their own behalf.

Omansky v. Lapidus & Smith, L. L. P. · filed 2000-06-15(a)(3)

However, dismissal of the first and second causes of action, stemming from damages allegedly sustained by the partnership and condominium, was warranted pursuant to CPLR 3211 (a) (3) since the individual plaintiffs were without authority to sue on the behalf of the partnership and condominium. On the other hand, the third cause of action, in which the individual plaintiffs seek direct relief on their own behalf, is not subject to CPLR 3211 (a) (3) dismissal and was not otherwise subject to dismissal on defendants’ prejoinder motion to dismiss.

Section 3211(a)(3) permits dismissal when a governmental plaintiff lacks capacity to sue and no exception applies.

Board of Education v. Board of Trustees · filed 2000-09-15(a)(3)

Inasmuch as the Charter Schools Act does not impinge upon “Home Rule” powers and as the Board makes no claim that it or the District will be forced to violate a constitutional proscription if it complies with the Act, the court concludes the Board does not fall within any of the recognized exceptions to the doctrine of incapacity to sue. Hence, the State defendants’ motion pursuant to CPLR 3211 (a) (3) is granted.

Section 3211(a)(3) permits dismissal when a plaintiff lacks capacity to sue because an undisclosed claim remains property of the bankruptcy estate.

Coogan v. Ed's Bargain Buggy Corp. · filed 2001-01-08(a)(3)

The Supreme Court did not err in dismissing the complaint on the ground that the plaintiffs lacked the capacity to sue.

Under Section 3211(a)(3), a school board has capacity to challenge an administrative charter approval that threatens its educational duties, but lacks capacity to challenge the Charter Schools Act’s constitutionality.

In re Board of Education of the Roosevelt Union Free School District · filed 2001-04-19(a)(3)

In analyzing each separately, we are compelled to find that, while the School Board does have the capacity to challenge the administrative determination of the SUNY Trustees as arbitrary and capricious, it does not have the capacity to mount a constitutional challenge to the Charter Schools Act.

CPLR 3211(a)(3) permits dismissal for lack of legal capacity to sue; a New York limited partnership has that capacity.

Orange County—Poughkeepsie MSA Ltd. Partnership v. Communications Concepts of New York, Inc. · filed 2003-01-21(a)(3)

In addition, the Supreme Court properly denied the defendants’ cross motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint on the ground that the plaintiff had no legal capacity to sue, as it is clear that the plaintiff is a New York limited partnership.

A foreign limited liability partnership licensed to do business in New York has capacity to sue and is not subject to dismissal under CPLR 3211(a)(3) for lack of capacity.

Fowler v. Island Properties · filed 2003-08-11(a)(3)

The Supreme Court improperly granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (3). Based upon the allegations in the complaint, the plaintiff is a foreign limited liability partnership licensed to do business in the State of New York, and thus does not lack the capacity to appear and bring its grievance before the court (cf. Pergament Home Ctrs. v Net Realty Holding Trust, 171 AD2d 736 [1991]).

CPLR 3211(a)(3) does not warrant dismissal when the plaintiff’s name is a correctable misdescription of its corporate name.

Cutting Edge, Inc. v. Santora · filed 2004-02-11(a)(3)

Supreme Court ... erred in granting defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (3) and in denying that part of plaintiffs cross motion seeking to amend the caption of the summons and amended complaint to designate plaintiff as “125 Old Orchard, Inc., d/b/a Cutting Edge,” its correct corporate name.

A defendant seeking dismissal under CPLR 3211(a)(3) must demonstrate that the plaintiff lacks legal capacity to sue.

Sta-Brite Services, Inc. v. Sutton · filed 2005-04-18(a)(3)

Further, the defendants failed to demonstrate that the plaintiff did not have the legal capacity to sue (see CPLR 3211 [a] [3]).

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

Edwards v. Siegel, Kelleher & Kahn · filed 2006-02-03(a)(3), (e)

Plaintiff contends for the first time on appeal that defendants waived the defense of lack of capacity to sue by failing to raise it in a preanswer motion to dismiss or in their answer (see CPLR 3211 [a] [3]; [e]). We agree with plaintiff that defendants waived the defense (see Household Bank [SB], N.A. v Mitchell, 12 AD3d 568 [2004]; MacCaull v Brown, 261 AD2d 829, 829-830 [1999]).

CPLR 3211(a)(3) permits dismissal when the plaintiff lacks capacity to sue.

Bajanov v. Grossman · filed 2007-01-09(a)(3)

Furthermore, the defendants were entitled to dismissal of the complaint based upon their affirmative defense of lack of capacity to sue (see CPLR 3211 [a] [3]; Monson v Israeli, 35 AD3d 680 [2006]; Goldstein v St. John’s Episcopal Hosp., supra; Quiros v Polow, supra).

Section 3211(a)(3) permits dismissal when the party asserting the claim lacks legal capacity to sue.

Tilden Development Corp. v. Nicaj · filed 2007-11-07(a)(3)

Initially, there appears to be no genuine dispute that Tilden Development is a nonexistent entity. Thus, it could not acquire rights or assume liabilities and, therefore, lacked capacity to enter into a contract, commence an action, or file a notice of pendency (see Rubenstein v Mayor, 41 AD3d 826 [2007]; 442 Decatur St., LLC v Spheres Realty, Inc., 14 AD3d 535 [2005]). ... Consequently, in addition to granting the sellers’ motion to cancel the notice of pendency, the court should have granted the sellers’ separate motion, in effect, to dismiss the complaint and denied the plaintiffs cross motion, inter alia, to amend the caption.

CPLR 3211(a)(3) permits dismissal of a complaint when the plaintiff lacks legal capacity to sue.

Wright v. Meyers & Spencer, LLP · filed 2007-12-18(a)(3)

Accordingly, this action may not be maintained by the plaintiff in his individual capacity, and the complaint should have been dismissed pursuant to CPLR 3211 (a) (3) for lack of legal capacity to sue (see Williams v Stein, 6 AD3d 197, 198 [2004]).

Section 3211(a)(3) permits dismissal for lack of capacity when a plaintiff knew or should have known of a prebankruptcy cause of action but failed to disclose it in bankruptcy.

Goldman v. Rio · filed 2008-01-28(a)(3)

CPLR 3211 (a) (3) permits the court to dismiss an action where the party bringing the action lacks the legal capacity to sue. A plaintiff who declares bankruptcy lacks capacity to sue on a cause of action if (1) the cause of action accrued prior to the filing of the bankruptcy petition; (2) the plaintiff knew or should have known the cause of action existed when he filed for bankruptcy; and (3) the plaintiff failed to disclose the existence of the cause of action as an asset in the bankruptcy proceeding.

A motion to dismiss for lack of capacity becomes academic when the court permits amendment to name the intended corporate plaintiff.

Tilden Development Corp. v. Nicaj · filed 2008-03-11(a)(3)

Consequently, the Supreme Court properly denied, as academic, the sellers’ motion to dismiss the complaint insofar as asserted against them based on a lack of capacity (see 442 Decatur St., LLC v Spheres Realty, Inc., 14 AD3d 535 [2005]).

CPLR 3211(a)(3) permits dismissal for lack of legal capacity to sue; lack of standing falls within that ground and must be raised in the answer to avoid waiver.

Baby Girl W. v. Bronx Lebanon Hospital Center · filed 2008-09-11(a)(3)

Under CPLR 3211 (a) (3), a party may move to dismiss one or more causes of action on the ground that the party asserting the cause of action does not have legal capacity to sue. Lack of standing to sue has been held by the courts of this state to fall within the category of lack of capacity to sue and a party must raise that legal argument in its answer as failure to do so constitutes a waiver of that legal argument.

Section 3211(a)(3) permits dismissal of a complaint when the plaintiff lacks capacity to sue.

Richards v. Lourdes Hospital · filed 2009-01-27(a)(3)

Indeed, insofar as plaintiffs initially lacked capacity to commence the action (see EPTL 5-4.1, 11-3.2 [b]), the complaint was subject to dismissal (see CPLR 3211 [a] [3]).

Section 3211(a)(3) does not require dismissal for lack of capacity when a dissolved corporation sues on a claim arising before dissolution while winding up its affairs.

J. Sackaris & Sons, Inc. v. Onekey · filed 2009-03-10(a)(3)

Contrary to the defendant’s contention, the Supreme Court did not err in denying that branch of its motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint on the ground that the plaintiff, as a dissolved corporation, lacks the legal capacity to sue. Since the claim underlying this suit is an alleged breach of contract which occurred in 1998, prior to the plaintiffs dissolution, it was properly permitted to pursue that claim in the course of winding up its affairs (see Business Corporation Law § 1006 [b]; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243 [2007]).

Section 3211(a)(3) permits dismissal for lack of capacity to sue when the plaintiff’s claim accrued before his bankruptcy proceeding and discharge.

Goldman v. Rio · filed 2009-05-19(a)(3)

However, under the circumstances, the plaintiff, whose claim to money owed to him would have accrued prior to his commencement of a bankruptcy proceeding in which he received a discharge in bankruptcy, lacks capacity to assert such a claim (see CPLR 3211 [a] [3]; Whelan v Longo, 1 NY3d 821, 822 [2006]; Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 196-197 [1987]; Quiros v Polow, 135 AD2d 697, 699-700 [1987]).

A plaintiff’s bankruptcy does not deprive a separate corporate plaintiff of capacity to sue under CPLR 3211(a)(3).

R. Della Realty Corp. v. Block 6222 Construction Corp. · filed 2009-09-29(a)(3)

However, the plaintiff R. Della Realty Corp. was not a petitioner in that, or any other, bankruptcy proceeding. Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiff R. Della Realty Corp.

A separate corporate plaintiff retains capacity to sue when an individual plaintiff received a bankruptcy discharge but the corporation was not a bankruptcy petitioner.

R. Della Realty Corp. v. Sunnymeade Leasing, LLC · filed 2009-09-29(a)(3)

On their motion, inter alia, to dismiss the complaint based on lack of capacity to sue (see CPLR 3211 [a] [3]), the defendants established that, several years before the instant action was commenced, the plaintiff Richard Belli Paoli commenced a bankruptcy proceeding, and was granted a discharge in bankruptcy. However, the plaintiff R. Bella Realty Corp. was not a petitioner in that, or any other, bankruptcy proceeding. Under these circumstances, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the first cause of action insofar as asserted by R. Bella Realty Corp. pursuant to CPLR 3211 (a) (3) (see R. Della Realty Corp. v Block 6222 Contr. Corp., 65 AD3d 1323 [2009] [decided herewith]; cf. Whelan v Longo, 7 NY3d 821, 822 [2006]; Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 196-197 [1987]; Quiros v Polow, 135 AD2d 697, 699-700 [1987]).

Section 3211(a)(3) does not require dismissal for lack of capacity when a plaintiff has letters of limited administration to represent the estate.

Santiago v. Nyack Hospital · filed 2009-12-08(a)(3)

Furthermore, under the circumstances, the Supreme Court properly denied those branches of the appellants’ motions which were pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against each of them on the ground that the plaintiff, who was granted letters of limited administration with respect to the estate of the decedent, Carmen Alicea, lacked the ... capacity to maintain the instant action as the representative of that estate (cf. CPLR 205 [a]; Carrick v Central Gen. Hosp., 51 NY2d 242, 252 [1980]).

CPLR 3211(a)(3) permits dismissal for lack of legal capacity when a plaintiff sues a receiver without court leave, unless the court permits the action nunc pro tunc.

Guberman v. Rudder · filed 2011-06-30(a)(3)

However, dismissal of the complaint was warranted for lack of legal capacity under CPLR 3211 (a) (3), since a legal action filed against a receiver without leave of court cannot be maintained (see Chang v Zapson, 67 AD3d 435 [2009]) unless the court permits the action to be filed nunc pro tunc (see Copeland at 230), which was not the case here.

A foreign corporation’s failure to comply with Business Corporation Law § 1312 (a) concerns its capacity to sue and is raised under CPLR 3211 (a) (3).

Digital Centre v. Apple Industries, Inc. · filed 2012-04-17(a)(3)

Dismissal pursuant to Business Corporation Law § 1312 (a) is not jurisdictional, but rather, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312 (a) is properly brought pursuant to CPLR 3211 (a) (3), not (a) (8) (see e.g. Hot Roll Mfg. Co. v Cerone Equip. Co., 38 AD2d 339 [1972]).

Section 3211(a)(3) does not require dismissal of a derivative complaint for lack of standing when the entity’s later cross claims against other parties do not undermine the plaintiffs’ allegations of demand futility.

Sacher v. Beacon Associates Management Corp. · filed 2014-02-05(a)(3)

Upon renewal, the Supreme Court properly adhered to its original determination denying that branch of Friedberg’s prior motion which was pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint insofar as asserted against it for lack of standing (see Sacher v Beacon Assoc. Mgt. Corp., 114 AD3d 655 [2014] [decided herewith]). Contrary to Friedberg’s contention, Beacon’s subsequent assertion of cross claims against other parties in the federal consolidated action does not undermine the plaintiffs’ allegations of demand futility in the amended complaint, especially in light of the evidence submitted by the plaintiffs that those cross claims were invited by Ivy in part to facilitate settlement (see Matter of Comverse Tech., Inc. Derivative Litig., 56 AD3d 49 [2008]; cf. Lazar v Merchants’ Natl. Props., 22 AD2d 253, 255 [1964]).

A defendant preserves a capacity defense under CPLR 3211(a)(3) by asserting it in the answer.

Wadsworth Condos, LLC v. Dollinger Gonski & Grossman · filed 2014-02-13(a)(3); (e)

Defendants preserved the defense that plaintiff lacked the capacity to sue derivatively on behalf of its cotenant-in-common by asserting the defense in their answer (see CPLR 3211 [a] [3]; [e]; see also Security Pac. Natl. Bank v Evans, 31 AD3d 278 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007]).

Section 3211(a)(8) permits dismissal of a complaint against a trade name because a trade name is not a jural entity amenable to suit.

Honeyman v. Curiosity Works, Inc. · filed 2014-09-17(a)(8)

The Supreme Court should have granted the appellant’s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against “Summit Business Media,” as a trade name is not a jural entity amenable to suit (see Holtzman v KTB Athletics SB TM, 113 AD3d 656, 656 [2014]; Equestrian Assoc. v Freidus, 192 AD2d 572, 574 [1993]; Provosty v Lydia E. Hall Hosp., 91 AD2d 658 [1982], affd 59 NY2d 812 [1983]).

Under CPLR 3211(a)(3), an action brought on behalf of a decedent may be dismissed when the plaintiff had not received letters of administration when the action began.

Shelley v. South Shore Healthcare · filed 2014-12-10(a)(3)

Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent’s estate and, thus, the Supreme Court properly granted that branch of the defendants’ cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity (see Jordan v Jordan, 120 AD3d at 632; Mingone v State of New York, 100 AD2d at 899; Egan v Neghavi, 84 AD3d 1014 [2011]; Muriel v New York City Health & Hosps. Corp., 52 AD3d 792 [2008]).

A defendant moving to dismiss for lack of legal capacity bears the initial burden of showing that the plaintiff is incompetent.

Vasilatos v. Dzamba · filed 2017-03-02(a)(3)

Accordingly, we agree with Supreme Court’s determination that defendants failed to meet their initial burden in support of the motions to dismiss pursuant to CPLR 3211 (a) (3).

CPLR 3211(a)(3) does not warrant dismissal for alleged mental incapacity when the plaintiff has not been judicially declared incompetent.

Piggott v. Lifespire, Inc. · filed 2017-04-05(a)(3)

Therefore, the Supreme Court erred in directing summary dismissal of the complaint based upon the plaintiff’s alleged lack of mental capacity.

CPLR 3211(a)(3) permits dismissal when derivative plaintiffs lack legal capacity to sue because conflicts prevent them from adequately representing the entity.

Pokoik v. Realties · filed 2017-04-12(a)(3)

A party may also move to dismiss claims if the "party asserting the cause of action has not legal capacity to sue" (CPLR 3211[a][3]; see also Wells Fargo Bank Minn. N.A. v Mastropaolo , 42 AD3d 239 , 243 [2d Dept 2007]). ... Having named all of the Norsel partners with whom plaintiffs disagree as defendants in this action, and given Leon Pokoik's demonstrated animus, plaintiffs' self-interest is palpably obvious to the point that they are unable to show that they will adequately represent the interest of these defendants. Thus, the amended complaint must be dismissed.

CPLR 3211(a)(3) permits dismissal of a wrongful death action commenced by a voluntary administrator before letters of administration are issued.

Rodriguez v. River Valley Care Center Inc. · filed 2017-07-17(a)(3)

More importantly, a voluntary administrator does not have the power to enforce a claim for a decedent’s wrongful death or personal injuries. ... Based on the aforementioned, the motion by River Valley and cross motion by Gracie Square for dismissal of this action is granted, and the plaintiff’s cross motion is denied.

CPLR 3211(a)(3) permits dismissal when a plaintiff lacks capacity to sue.

Sokoloff v. Schor · filed 2019-08-21(a)(3)

Moreover, since the decedent should not have been individually named as a plaintiff in the 2013 action, there was clearly a lack of capacity to sue, and the 2013 action should have been dismissed on that ground pursuant to CPLR 3211(a)(3) ( see George v Mt. Sinai Hosp. , 47 NY2d at 177; Robles v Brooklyn-Queens Nursing Home, Inc. , 131 AD3d 1032, 1033; Rumola v Maimonides Med. Ctr. , 37 AD3d 696, 697; Mendez v Kyung Yoo , 23 AD3d at 355).

A motion to dismiss for lack of capacity to sue may be denied when a bankruptcy trustee is substituted as plaintiff at the bankruptcy court's direction.

Fausset v. Turner Constr. Co. · filed 2019-11-13(a)(3)

As a matter of comity, and in deference to the determination of the Bankruptcy Court, we agree with the Supreme Court's determination to grant the plaintiff's cross motion, inter alia, to substitute the bankruptcy trustee as the plaintiff, and to deny the defendants' motion for leave to [*2]amend their answer to assert the affirmative defense of lack of capacity to sue, and thereupon, to dismiss the complaint.

CPLR 3211(a)(3) permits dismissal when beneficiaries without authority to represent an estate sue to recover estate assets, whether in a derivative or individual capacity.

Levy v. Levy · filed 2023-04-12(a)(3)

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(3) to dismiss, insofar as asserted against them, the causes of action in the amended complaint asserted by the plaintiffs in their derivative capacity on behalf of the decedent's estate, as well as the causes of action asserted by the plaintiffs in their individual capacity as beneficiaries of the estate to recover assets of the estate ( see McQuaide v Perot , 223 NY at 79; Gulledge v Jefferson County , 172 AD3d at 1667; Stallsworth v Stallsworth , 138 AD3d at 1103).

Section 3211(a)(3) permits dismissal for lack of capacity to sue when a proposed estate administratrix has not been appointed; that dismissal is not on the merits.

Acevedo v. Atlantis Operating, LLC · filed 2024-03-01(a)(3)

The motion by Atlantis Operating LLC ("Defendant") to dismiss the complaint of Julie Acevedo as proposed administratrix of the estate of Jose Acevedo pursuant to CPLR §3211 (a) (3) is GRANTED. ... Additionally, as of oral argument (which Plaintiff did not attend), Plaintiff does not have capacity to sue as she is not the estate's administratrix. However, lack of capacity to sue is not a dismissal upon the merits ( see Robles v Brooklyn Queens Nursing Home, Inc , 131 AD3d 1032 [2d Dept 2015]).

CPLR 3211(a)(3) permits dismissal for lack of capacity when a proposed estate administrator has not received letters of administration.

Diaz v. Bajkina · filed 2024-03-29(a)(3)

Consequently, a “proposed administrator” lacks capacity to prosecute either a personal injury “survival” action or a wrongful death action on behalf of the estate of a decedent ... and the complaint must be dismissed against the remaining NYPH defendants insofar as asserted by Juan Colon, as the proposed administrator of the estate of Rafael Colon Diaz.

Section 3211(a)(3) permits dismissal of an estate’s complaint when the person who commenced the action lacks capacity to prosecute it.

Brown v. Mount Sinai W. · filed 2024-03-29(a)(3)

In this action to recover damages, inter alia, for medical malpractice and statutory nursing home negligence, the defendant Mount Sinai West moves pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against it, based on the plaintiff’s lack of capacity to prosecute the action. The plaintiff opposes the motion. The motion is granted, and the complaint is dismissed insofar as asserted against Mount Sinai West, albeit without prejudice to commencement of a new action against it for the same relief pursuant to CPLR 205(a) by a duly authorized representative of the estate of the plaintiff’s decedent, Kevin Brown.

CPLR 3211(a)(3) permits dismissal when an alleged estate representative lacks legal capacity to sue.

Armstead v. New York City Health & Hosps. Corp. · filed 2024-07-30(a)(3)

A defendant is therefore entitled to dismissal under CPLR 3211 (a) (3) if the alleged representative of the estate lacks that authority.

Section 3211(a) permits dismissal of a complaint when the plaintiff lacks capacity to sue.

Rodriguez v. 21 Herkimer Mgt., LLC · filed 2024-07-31(a)

Here, the Supreme Court correctly concluded that the plaintiff's limited letters of administration over the decedent's estate did not grant him the authority to commence this plenary action, and thus, the court properly directed dismissal of the complaint ( see id. ).

CPLR 3211(a)(3) permits dismissal when a proposed estate administrator lacks capacity to commence the action.

Pollen v. Dewitt Rehabilitation & Nursing Ctr. · filed 2024-10-10(a)(3)

The defendant’s motion is granted on the ground that the plaintiff lacked capacity to commence the action, and the complaint is dismissed, albeit without prejudice to commencement of a new action by Adler in his representative capacity in accordance with CPLR 205(a).

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

Estate of Figueroa v. Jewish Home Lifecare, Manhattan · filed 2024-10-11(a)(3)

The defendant’s motion is granted on the ground that the plaintiff lacked capacity to commence the action, and the complaint is dismissed, albeit without prejudice to the commencement of a new action in accordance with CPLR 205(a) by Gladys Figueroa in her representative capacity.

CPLR 3211(a)(3) permits dismissal when an estate representative lacks legal capacity, but a later appointment and amendment of the pleadings can defeat the motion.

Babich v. New York City Health & Hosps. · filed 2024-10-31(a)(3)

Generally, a defendant is entitled to dismissal upon showing that the alleged representative has not been duly appointed, and therefore lacks legal capacity under CPLR 3211 (a) (3) and lacks an essential element the claims under CPLR 3211 (a) (7). ... In light of Marc Babich's appointment as executor and the amendment of the pleadings herein, the defendants' motions to dismiss on the basis of lack of capacity are denied .

Section 3211(a)(3) permits a motion to dismiss for lack of capacity to sue, but dismissal may be denied when a bankruptcy court’s order directs substitution of the trustee as plaintiff.

Berry v. Rampersad · filed 2008-10-02(a)(3)

As a preliminary matter, although defendant moves for dismissal pursuant to CPLR 3211 (a) (3), (5), and (7), his motion discusses only the plaintiffs lack of capacity to sue pursuant to CPLR 3211 (a) (3). ... Notwithstanding the authority set forth in both Pinto and Reynolds, this court denies that branch of defendant’s motion seeking dismissal of the action.

On a motion to dismiss for lack of capacity, the defendant bears the burden of establishing that the plaintiff lacked capacity to commence the action.

Cruz v. Mount Sinai Hosp. · filed 2024-12-24(a)(3)

The burden is on the defendant to establish that the plaintiff lacked capacity to commence this action (see Bartel v Farrell Lines, 215 AD3d 517, 526 [1st Dept 2023]). The defendant here has established that the plaintiff lacked capacity to commence the action on the date that she filed the summons and complaint by noting that she was only a “proposed administrator” at the time that she commenced the action.

CPLR 3211(a)(3) requires dismissal when a defendant timely moves against a plaintiff who lacked capacity to commence the action; later appointment of an estate representative does not cure the defect in that action.

Estate of Brown v. Terence Cardinal Cooke Health Care Ctr. · filed 2025-01-10(a)(3)

Where a plaintiff lacks capacity to prosecute an action, and a defendant timely moves to dismiss the complaint on that ground, the complaint must be dismissed, and is not subject to an amendment to substitute either a proper plaintiff or an existing plaintiff who secured appointment as a proper administrator or executor of a decedent’s estate during the pendency of the action.