N.Y. C.P.L.R. § 3211

Section 3211(a)(3) permits dismissal when a proposed estate administrator lacks capacity to sue on a decedent’s behalf.

Jaquez v. St. Luke's-Roosevelt Hosp. Ctr. · filed 2025-02-13(a)(3)

As the plaintiff lacks capacity to assert these claims, the complaint and the action must be dismissed.

A plaintiff who lacks capacity to sue when an action begins cannot cure that defect by later obtaining letters of administration and amending the complaint.

Figueroa v. Jewish Home Lifecare Manhattan · filed 2025-03-31(a)(3)

Moreover, contrary to the plaintiff’s contention, the fact that, on May 31, 2024, and, thus, during the pendency of this action, she ultimately obtained letters of administration from the Surrogate’s Court, New York County, does not retroactively imbue her with legal authority to prosecute this action, and she may not make a belated motion to amend the complaint herein to allege that she now has capacity to prosecute the subject claims (see Mingone v State of New York, 100 AD2d 897, 899 [2d Dept 1984]; Cianciotto v Hospice Care Network, 32 Misc 3d 916, 919 [Dist Ct, Nassau County 2011]).

Section 3211(a)(3) permits dismissal of an estate’s claims when its proposed administrator lacks legal capacity to sue because letters of administration have not been issued.

Pilgrim v. New York City Health & Hosps. Corp. · filed 2025-04-29(a)(3)

Here, Plaintiff recommenced this action and served Defendants within six months of the 2024 action’s dismissal, but he has yet to obtain letters of administration. Defendants have therefore established that the “proposed” administrator still has no legal capacity to bring the asserted causes of action on behalf of the decedent’s estate, and this action must be dismissed in its entirety under CPLR 3211 (a) (3).

Section 3211(a)(3) permits dismissal for lack of capacity when a person seeking to bring an estate's claims has not received letters of administration.

Tumminia v. Staten Is. Univ. Hosp. · filed 2025-06-04(a)(3)

Because the plaintiff had not yet received letters of administration at the time that he commenced this action, the Supreme Court properly granted those branches of the nursing home's motion and the hospital's cross-motion which were pursuant to CPLR 3211(a)(3) and EPTL 5-4.1 to dismiss the complaint insofar as asserted against each of them ( see Carrick v Central Gen. Hosp. , 51 NY2d 242, 246; Cappola v Tennyson Ct. , 230 AD3d 1553, 1554; Gulledge v Jefferson County , 172 AD3d 1666, 1667; Shelley v South Shore Healthcare , 123 AD3d at 798).

A party moving to dismiss under CPLR 3211(a)(3) for lack of capacity to sue must make a prima facie showing that the plaintiff lacks capacity.

HOF I Grantor Trust 5 v. M&M Props. Ventures LLC · filed 2025-10-08(a)(3)

A party moving to dismiss based on lack of capacity to sue must make a primafacie showing that the plaintiff lacks such capacity.

CPLR 3211(a)(3) permits dismissal without prejudice when a proposed estate administrator commenced an action before receiving letters of administration.

Larson v. Shore View Rehabilitation & Nursing Ctr. · filed 2026-02-18(a)(3)

The Supreme Court should have granted the separate motions of Shore View, Menorah, and NYCH to dismiss the complaint insofar as asserted against each of them to the extent of dismissing the complaint insofar as asserted against each of those defendants without prejudice. Dismissal was warranted on the ground that the plaintiff lacked capacity to bring the action, as she had not yet obtained letters of administration to become the personal representative of the decedent's estate at the time of the commencement of this action ( see CPLR 3211[a][3]; EPTL 11-3.2[b], 11-4.1; Carrick v Central Gen. Hosp. , 51 NY2d 242, 246; Shelley v South Shore Healthcare , 123 AD3d 797, 798).

CPLR 3211(a)(3) permits dismissal for lack of capacity to sue when a person seeking to sue on behalf of an estate has not obtained letters of administration or letters testamentary.

Kushakow v. Law Offs. of Joseph B. Rosenberg · filed 2026-02-18(a)(3)

Thus, the court properly treated the motion as one made, in effect, pursuant to CPLR 3211(a)(3) to dismiss the amended complaint for lack of capacity ( see Matter of Blauman-Spindler v Blauman , 68 AD3d at 1106) and properly directed dismissal of the amended complaint on that ground, as the plaintiff's failure to provide letters of administration or letters testamentary deprived him of capacity to bring this lawsuit on behalf of Rita's estate ( see Gulledge v Jefferson County , 172 AD3d at 1667; Muriel v New York City Health & Hosps. Corp. , 52 AD3d at 792).

Section 3211(a)(3) does not require dismissal of an action begun before the plaintiffs’ bankruptcy when the bankruptcy trustee can be substituted to continue it.

Reynolds v. Blue Cross of Northeastern New York, Inc. · filed 1993-08-26(a)(3)

The most recent trial date of March 19, 1993 was adjourned by the court because defendants made a motion to dismiss the action, pursuant to CPLR 3211 (a) (3), on the ground that the plaintiffs, by reason of their having been discharged in bankruptcy in 1991, lack the legal capacity to continue to prosecute this action. ... The substitution of the trustee as the proper party plaintiff is appropriate in this case. Although a formal motion to substitute the interim trustee as plaintiff has not been made, the court has the power under CPLR 1018 and 2001 to direct a substitution in a case such as this where the substantial rights of the defendants are not prejudiced. Defendants’ motion is denied without costs and Gregory G. Harris is substituted as plaintiff in place and stead of Roberta Reynolds and Forrest Reynolds.

A lack of capacity to sue does not require dismissal under CPLR 3211(a)(3) when the plaintiff obtains letters of administration within CPLR 205(a)'s six-month savings period.

Rodriguez v. River Val. Care Ctr., Inc. · filed 2019-08-27(a)(3)

Order, Supreme Court, Bronx County (Joseph Capella, J.), entered July 28, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(3) based on plaintiff's lack of capacity to enforce decedent's personal injury and wrongful death claims, and denied plaintiff's cross motion to amend the caption and complaint to recognize him as administrator of decedent's estate, unanimously reversed, on the law, without costs, defendants' motions denied, and plaintiff's cross motion granted. ... Because the first action was finally terminated on October 18, 2016, and the letters of administration were issued on April 18, 2017, on the last day of the six-month savings period (CPLR 205[a]), plaintiff timely obtained legal capacity to pursue the claims in this action.

CPLR 3211(a)(3) does not require dismissal of a notice-of-claim petition merely because the proposed administrator lacks capacity to bring an action.

Matter of Primus v. New York City Health & Hosps. Corp. · filed 2025-03-27(a)(3)

Turning to the cross motion (Seq. No. 2) to dismiss this petition pursuant CPLR 3211 (a) (3), the respondents argue that the petitioner is merely a "proposed administrator" and lacks legal capacity to bring this petition and Order to Show Cause. ... A "proposed administrator" who has not been appointed by Surrogate's Court has no legal capacity to maintain an action by Summons and Complaint, but the same requirements do not apply to filing a notice of claim. ... In conclusion, the cross motion seeking to dismiss for [*4]lack of capacity is denied as moot with regards to the medical malpractice claims and denied as inapplicable to the wrongful death claim.

CPLR 3211(a)(3) does not limit when the State may invoke the separate separation-of-powers bar against a municipality's challenge to state law.

Clarke v. Town of Newburgh · filed 2025-11-20(a)(3)

Contrary to Newburgh's argument, the CPLR does not limit the circumstances under which the State may invoke this capacity bar, which is rooted in separation of powers principles and therefore analytically distinct from the "legal capacity to sue" ( see CPLR 3211 [a] [3]).

A pleaded serious injury issue presents a factual dispute that allows a plaintiff to survive a CPLR 3211 motion.

Taber v. Niagara Frontier Transit Authority · filed 1979-10-03

Once pleaded, the "serious injury” issue offers a real dispute which should allow a plaintiff to survive both CPLR 3211 and 3212 motions.

A CPLR 3211 motion to dismiss a breach of fiduciary duty counterclaim may be denied when the counterclaim adequately alleges duty, misconduct, and resulting damages.

NRT New York, LLC v. Morin · filed 2017-02-21

The motion court correctly denied Rutenberg’s motion, because defendants have adequately stated a counterclaim for breach of fiduciary duty, which, if successful, could defeat Rutenberg’s right to a broker commission (see Douglas Elliman LLC v Tretter, 84 AD3d 446, 448 [1st Dept 2011], affd 20 NY3d 875 [2012]; Brown Harris Stevens Residential Sales v Oxford Capital Corp., 306 AD2d 112, 112 [1st Dept 2003]).

CPLR 3211(a)(7) permits dismissal of a counterclaim when the counterclaimant fails to allege facts supporting a required element.

Davydov v. Youssefi · filed 2022-05-18(a)(7)

Furthermore, dismissal of a counterclaim is warranted if the counterclaimant fails to assert facts in support of an element of the counterclaim ( see Shah v Mitra , 171 AD3d at 973; see generally Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 142).

CPLR 3211(a)(2) and (a)(6) permit dismissal of counterclaims against the State in Supreme Court when the Court of Claims has exclusive jurisdiction over them.

State v. Jones · filed 1994-12-27(a)(2); (a)(6)

Accordingly, it was proper for the Supreme Court to dismiss the defendant’s counterclaims against the State of New York pursuant to CPLR 3211 (a) (2); (a) (6).

Section 3211(a)(6) permits dismissal of a counterclaim that is inappropriate in the action, without prejudice to a separate third-party action.

Poluliah v. Fidelity High Income Fund · filed 1984-06-12(a)(6)

In any event, we exercise our discretion to dismiss this counterclaim as inappropriate, without prejudice to a third-party action under the circumstances herein (see CPLR 3211, subd [a], par 6; 1010).

Section 3211(a)(6) permits dismissal of counterclaims that a stipulation bars from being interposed in the action.

National Medical Management, Inc. v. Midland Emergency Associates · filed 1984-06-25(a)(6)

However, Special Term’s order must be modified to the extent of granting those branches of plaintiff’s motion which sought to dismiss defendants’ first and second counterclaims for breach of contract .and mutual mistake; those counterclaims may not be interposed in this action by reason of the parties’ stipulation (CPLR 3211, subd [a], par 6).

Section 3211(e) permits leave to bring a separate action incorporating allegations of dismissed counterclaims.

Bank of New York v. Hyland · filed 1987-05-22(e)

While the court properly granted defendants leave to commence a separate action incorporating the allegations of counterclaims which had been dismissed (see, CPLR 3211 [e]; Rochester Poster Adv. Co. v Town of Penfield, 51 AD2d 870), the court erred in granting defendants leave to seek consolidation of such action with plaintiffs action.

On a CPLR 3211 motion to dismiss a counterclaim, the court accepts its allegations as true and asks whether they state a cause of action.

Darby & Darby, P. C. v. VSI International, Inc. · filed 2000-01-13

The branch of plaintiffs motion challenging defendants’ counterclaims alleging attorney malpractice and breach of fiduciary duty was brought pursuant to CPLR 3211. Accordingly, in addressing that application, the court will accept as true the allegations of the counterclaim, and consider whether they state a cause of action upon which relief may be granted.

CPLR 3211(a)(7) permits dismissal of counterclaims that duplicate a breach of contract counterclaim.

Tsai v. Lo · filed 2023-01-24(a)(7)

Supreme Court properly dismissed defendants' remaining counterclaims as duplicative of their breach of contract counterclaim (CPLR 3211[a][7]; see Cronos Group Ltd. v XComIP, LLC , 156 AD3d 54, 62-63 [1st Dept 2017]; Morgenroth v Toll Bros., Inc. , 60 AD3d 596, 597 [1st Dept 2009]).

Section 3211(a)(7) applies the same motion-to-dismiss standard to claims, crossclaims, and counterclaims.

Eustache v. Board of Educ. of the City Sch. Dist. of the City of N.Y. · filed 2025-12-18(a)(7)

The standard of review on a motion to dismiss pursuant to CPLR § 3211 (a)(7) is the same for a claim, crossclaim, or counterclaim (CPLR § 3019 [d]).

Section 3211(a)(7) motions to dismiss for failure to state a cause of action are generally improper in small claims cases absent extraordinary circumstances.

Weiner v. Tel Aviv Car & Limousine Service, Ltd. · filed 1988-10-12(a)(7)

Simply put, motions to dismiss under CPLR 3211 (a) (7) are rarely, if ever, applicable to small claims cases. They should be dismissed as improperly made without reaching their merits.

Pretrial motions to dismiss for failure to state a cause of action should rarely, if ever, be entertained in Small Claims Court.

Friedman v. Seward Park Housing Corp. · filed 1995-12-13(a)(7)

We reiterate the rule that pretrial motions to dismiss for failure to state a cause of action should rarely, if ever, be entertained in Small Claims Court (Ben-Aretz v Neustein, NYLJ, Apr. 7, 1995, at 25, col 3 [App Term, 1st Dept]; Weiner v Tel Aviv Car & Limousine Serv., 141 Misc 2d 339).

A motion to dismiss may be heard in an appropriate small claims case to determine whether the plaintiff has a legal right to recover, assuming the alleged facts are true.

Selvy v. Albany Police Department · filed 2000-11-09(a)(7)

On the other hand, it is the opinion of this court that motions to dismiss should be permitted in appropriate situations. For example, where, as here, there are limited circumstances under which plaintiff would have a right to recover from defendant as a matter of law, even if defendant did cause damages to his property, it is in the interest of judicial economy for the court to make a pretrial determination as to whether, assuming the facts alleged by plaintiff to be true, the circumstances would provide him with a legal right to recovery. If such circumstances exist, the matter should proceed to trial; if they do not, the claim should be dismissed.

Pretrial motions under CPLR 3211(a)(7) should rarely, if ever, be entertained in Small Claims Court.

Polanco v. City of New York · filed 2023-12-27(a)(7)

Pretrial motions to dismiss for failure to state a cause of action should rarely, if ever, be entertained in Small Claims Court ( see Friedman v Seward Park Hous. Corp., 167 Misc 2d 57 [App Term, 1st Dept 1995]; see also Rackowski v Araya , 152 AD3d 834, 836 [2017]) and no exception to the rule is warranted in this case.

CPLR 3211(a)(11) provides qualified immunity only to officers of not-for-profit organizations described in 26 USC § 501 (c) (3).

Bernbach v. Bonnie Briar Country Club · filed 1988-11-28(a)(11)

As the defendant country club is thus not a not-for-profit corporation as described in 26 USC § 501 (c) (3), its Board of Governors is not entitled to the qualified immunity provided by CPLR 3211 (a) (11) and N-PCL 720-a.

On a motion to dismiss based on nonprofit director immunity, the court determines whether the defendant qualifies for immunity and whether the plaintiff has evidence showing a fair likelihood of proving gross negligence or intent to cause harm.

Rabushka v. Marks · filed 1996-07-25(a)(11)

On a CPLR 3211 (a) (11) motion, Supreme Court is obligated to determine whether the defendant is entitled to the benefits conferred by N-PCL 720-a and, if it so finds, then it must ascertain whether there is a reasonable probability that the specific conduct of the defendant fell outside the protective shield afforded by N-PCL 720-a. ... In light of the legislative intent to curtail litigation against persons engaged in nonpaid charitable activities in its earliest stages (4 Weinstein-Korn-Miller, NY Civ Prac 3211.40), it is our view that a plaintiff must come forward with evidentiary proof showing a fair likelihood that he or she will be able to prove that the defendant was grossly negligent or intended to cause the resulting harm.

Section 3211(a)(11) permits dismissal of claims against unpaid nonprofit directors when the complaint does not allege gross negligence or intent to cause harm.

Pontarelli v. Shapero · filed 1996-09-12(a)(11)

Moreover, the IAS Court properly held that the unpaid directors are immune from suit under Not-For-Profit Corporation Law § 720-a and CPLR 3211 (a) (11), absent allegations of their gross negligence or intention to cause harm.

CPLR 3211(a)(11) permits dismissal based on Not-For-Profit Corporation Law § 720-a immunity when the defendant shows entitlement to that immunity and the plaintiff fails to establish a reasonable probability of gross negligence or intent to cause harm.

Scaccia v. MacCurdy · filed 1997-05-30(a)(11)

The court also properly dismissed the complaint on the alternative ground that defendant is entitled to immunity from liability pursuant to section 720-a of the Not-For-Profit Corporation Law (see, CPLR 3211 [a] [11]). Defendant demonstrated that she is entitled to the benefit of section 720-a, and plaintiff failed to establish a reasonable probability that defendant’s conduct constituted gross negligence or was intended to cause harm (see, CPLR 3211 [a] [11]; cf., Brown v Albany Citizens Council on Alcoholism, 199 AD2d 904).

Section 3211(a)(11) permits dismissal of claims against qualifying nonprofit trustees when there is no reasonable probability that their conduct was grossly negligent or intended to cause harm; supporting evidence need not come from the chief financial officer.

Thome v. Alexander & Louisa Calder Foundation · filed 2009-12-01(a)(11)

Lastly, the complaint could not proceed in any event against the individual defendants, who are entitled to qualified immunity pursuant to Not-For-Profit Corporation Law § 720-a, in view of the affidavit by the Foundation’s chairman and director, Alexander S.C. Rower, establishing that they served without compensation, and because, as provided by CPLR 3211 (a) (11), there is no “reasonable probability” that their conduct constitutes gross negligence or was intended to cause harm. There is no dispute that the Foundation is a section 501 (c) (3) organization under the Internal Revenue Code (26 USC). Although Rower is not, as plaintiff notes, the chief financial officer (CFO) of the Foundation—it does not appear that the Foundation has a CFO—he is its chairman and director, and the CPLR does not require that it be the CFO who submits a letter. Rather, the CPLR states only that the evidence “may consist” of a letter from the CFO.

CPLR 3211(a)(11) permits dismissal based on nonprofit officer or trustee immunity only when the defendant qualifies for that immunity and the alleged conduct does not meet the statutory exception for gross negligence or intended harm.

Doe v. Eliyas · filed 2025-09-10(a)(11)

The Supreme Court also properly determined that the defendants were not entitled to dismissal pursuant to CPLR 3211(a)(11). ... Here, the defendants have not submitted any evidence that they are either current members of the church's board of trustees or "[k]ey person[s]" within the meaning of Not-for-Profit Corporation Law § 102(a)(25). In any event, the plaintiffs submitted sufficient evidence to demonstrate that there is a reasonable probability that the specific conduct alleged constituted gross negligence or was intended to cause the resulting harm ( see Laguerre v Maurice , 192 AD3d at 49-50).

A timely pre-answer motion to dismiss prevents a default judgment for failure to answer.

Lipin v. Hunt · filed 2016-03-10(f)

In light of defendants’ timely pre-answer motions to dismiss, plaintiff was not entitled to default judgments against any defendants (see CPLR 3012 [a]; CPLR 3211 [f]).

After a motion to dismiss is denied, a served defendant who has not answered must answer within 10 days after service of the order with notice of entry.

International Ass'n of Machinists & Aerospace Workers v. Allegis Corp. · filed 1989-08-02(f)

Those defendants who have been served and have not answered are directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry (CPLR 3211 [f]).

Section 3211(f) gives a defendant 10 days to answer after service of an order denying a motion to dismiss with notice of entry.

Caruso v. Board of Managers of Murray Hill Terrace Condominium · filed 1990-01-09(f)

Defendant is directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry (CPLR 3211 [fj).

Section 3211 permits a defendant to move to dismiss before answering and extends the time to answer until 10 days after service of notice of entry of the order on the motion.

Olsen v. 432 East 57th Street Corp. · filed 1989-11-30(e), (f)

Under CPLR 3211 (e) a defendant is permitted to move for dismissal before service of its answer, and a defendant’s time to answer the complaint is then extended to 10 days after service of notice of entry of the order on the motion (CPLR 3211 [f]).

A motion to dismiss under CPLR 3211 (a) extends the time to serve a responsive pleading until 10 days after service of notice of entry of the order disposing of the motion.

Polish American Immigration Relief Committee, Inc. v. Relax · filed 1991-04-23(a)

A motion to dismiss a cause of action pursuant to CPLR 3211 (a) operates to extend the time in which to serve a pleading in response thereto until 10 days after service of notice of entry of the order disposing of the motion.

When grounds for dismissal under CPLR 3211(a)(2) and (7) have already been raised in the answer, summary judgment is the proper motion.

95 River Co. v. Burnett · filed 1993-12-30(a)(2), (a)(7)

Respondent tenant moves to dismiss this proceeding, pursuant to CPLR 3211 (a) (2) and (7), or alternatively for summary judgment granting such relief. As respondent tenant has already raised the grounds for the motion in paragraph (3) of his answer, the latter motion is the proper one.

Section 3211(f) extends the time to serve an answer until 10 days after service of notice of entry of an order denying a timely motion to dismiss.

Joshi v. Joshi · filed 1996-05-31(f)

Thus, defendant was entitled to an extension of time to serve his answer until 10 days after service of notice of entry of the order denying his motion (see, CPLR 3211 [f]).

A motion under CPLR 3211(a)(7) for failure to state a cause of action remains available after issue has been joined.

Pinnacle Environmental Systems, Inc. v. R.W. Granger & Sons, Inc. · filed 1997-12-11(a)(7)

Although issue had already been joined by the time defendants made their motion to dismiss, defendants did not waive their opportunity to bring motions pursuant-to CPLR 3211 (a) (7) claiming a failure to state a cause of action (see, CPLR 3211 [e]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:53, at 73).

Section 3211(f) extends the time to reply to a counterclaim until 10 days after service of the order deciding a timely motion to dismiss it, with notice of entry.

Carinha v. Carinha · filed 1998-10-21(f)

Once a motion is made pursuant to that rule, subdivision (f) of CPLR 3211 extends the time to reply to the cause of action until 10 days after service of entry of the order hereon, if plaintiff is not otherwise in default.

Striking a defendant’s answer does not render its CPLR 3211(a)(7) motion to dismiss academic.

Lavi v. Lavi · filed 1998-12-31(a)(7)

Although the court struck the defendants’ answer, the defendants’ cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) was not rendered academic (see, Green v Dolphy Constr. Co., 187 AD2d 635).

Section 3211(f) permits a defendant whose motion to dismiss is restored to the calendar to serve an answer within 10 days after service of the decision with notice of entry.

Tulley v. Straus · filed 1999-10-12(f)

Since the motion to dismiss the third-party complaint was restored to the calendar, that branch of Straus’ motion which was for leave to enter a default judgment based on Smith’s failure to answer was properly denied, and Smith has 10 days after the service upon him of a copy of this order with notice of entry to serve an answer (see, CPLR 3211 [f]).

CPLR 3211(f) requires a defendant to answer within 15 days after service of an appellate order reversing dismissal of the complaint, with notice of entry.

Rockland County Patrolmen's Benevolent Ass'n v. Town of Clarkstown · filed 2001-11-26(f)

The defendants failed to interpose an answer within 15 days after service upon them of a copy of the decision and order of this Court with notice of entry. Accordingly, pursuant to CPLR 3211(f) the defendants defaulted in interposing an answer.

Section 3211(f) tolls the time to answer when a motion to dismiss is before a court, but a motion no longer before any court does not toll that time.

North County Communications Corp. v. Verizon New York, Inc. · filed 2003-05-19(f)

As such, defendants’ motion to dismiss was not before any court and cannot serve to toll the period for defendants to answer as it ordinarily would under state rule (CPLR 3211 [f]).

A timely motion to dismiss one cause of action extends the defendant’s time to respond to the other causes of action.

Chagnon v. Tyson · filed 2004-10-19

In view of the stipulation extending Lewis’s time to answer, move or otherwise respond to the complaint, his timely motion to dismiss the negligent hiring cause of action extended his time to respond to the other causes of action as well (United Equity Servs. v First Am. Tit. Ins. Co., 75 Misc 2d 254 [1973]).

Section 3211(f) gives a defendant whose motion to dismiss is denied additional time to serve an answer.

Munroe v. Burgher · filed 2007-09-11(f)

To vacate their default in answering pursuant to CPLR 3211 (f), the appellants were required to demonstrate a justifiable excuse for the default and a meritorious defense.

CPLR 3211(f) permits a motion to dismiss before a responsive pleading and extends the time to answer until 10 days after notice of entry of the order.

Stewart v. State · filed 2007-09-24(f)

In turn, CPLR 3211 (f) permits “[s]ervice of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed” and extends the time to serve a responsive pleading until 10 days after service of notice of entry of the order.

CPLR 3211(f) automatically extends the time to answer in plenary actions when a motion to dismiss is made.

860 Nostrand Associates, LLC v. WF Kosher Food Distributors Ltd. · filed 2010-01-29(f)

Moreover, while CPLR 404 (a), which applies to special proceedings generally, provides that a respondent in a special proceeding may move to dismiss within the time allowed for answer and that, if the motion is denied, the court may permit the respondent to answer, this provision, unlike CPLR 3211 (f), which is applicable in plenary actions, does not automatically extend the respondent’s time to answer (see Matter of Dodge, 25 NY2d 273, 286-287 [1969]; Eklecco Newco, LLC v Chagit, Inc., 12 Misc 3d 143[A], 2006 NY Slip Op 51421[U] [App Term, 9th & 10th Jud Dists 2006]), and the court, upon deciding tenant’s motion, did not extend tenant’s time to answer.

Timely service of an unsuccessful pre-answer motion to dismiss extends the defendant’s time to answer by 10 days, even if the motion was not properly filed.

Franklin Credit Management Corp. v. Wik · filed 2010-07-09(f)

We further conclude that defendant was entitled to the benefit of the 10 additional days set forth in CPLR 3211 (f) in which to serve an answer to the complaint, and we therefore further modify the order accordingly. ... Second, although defendant did not file his motion properly because he failed to obtain an RJI, it is undisputed that he served the motion upon plaintiff in a timely manner, and it is service of an unsuccessful pre-answer motion to dismiss, rather than filing, that extends a defendant’s time in which to answer the complaint under CPLR 3211 (f).

A defendant who has answered may still move under CPLR 3211(a)(7) to dismiss for failure to state a cause of action.

Dermigny v. Siebert · filed 2010-12-07(e)

In this action for malicious prosecution, the court erred in holding that defendant, who had answered the complaint, was required to moved for summary judgment instead of moving to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7) (CPLR 3211 [e]; Herman v Greenberg, 221 AD2d 251 [1995]).

After a pre-answer motion to dismiss is denied and notice of entry is served, the defendant must answer within 10 days or be in default.

Weber v. Peller · filed 2011-03-03(f)

Once that pre-answer motion was denied by County Court and notice of entry of the order was served on defendants, they were required to serve an answer within 10 days (see CPLR 3211 [f]). Defendants’ conceded failure to do so created a default (see ABS 1200, LLC v Kudriashova, 60 AD3d 1164, 1165-1166 [2009]).

Section 3211(f) extends the time to answer counterclaims until 10 days after service of an order denying dismissal with notice of entry.

Midland Funding, LLC v. Giraldo · filed 2013-03-22(f)

Plaintiff is directed to serve and file an answer to defendant’s General Business Law and FDCPA counterclaims, forthwith. Its time to do so is extended until 10 days after service of a copy of this order upon its attorneys, with notice of entry. (See CPLR 3211 [f].)

Section 3211(f) permits a respondent to answer the remaining claims after its motion to dismiss is denied, before those claims are finally determined.

Puerto v. Doar · filed 2013-04-17(f)

Therefore City respondent is entitled to answer before a final determination of this claim upon a motion for summary judgment or after an opportunity for disclosure and a trial.

A CPLR 3211(a) motion extends the time to answer until 10 days after service of notice of entry of the order deciding the motion.

Re-Poly Manufacturing Corp. v. Dragonides · filed 2013-08-14(f)

The original motion pursuant to CPLR 3211 (a) to dismiss the original complaint extended the defendants’ time to answer (see CPLR 3211 [f]) until 10 days after service of notice of entry of the order determining that motion, and similarly extended the time within which the plaintiffs could serve an amended complaint as of right (see CPLR 3025 [a]; Johnson v Spence, 286 AD2d 481, 483 [2001]; STS Mgt. Dev. v New York State Dept, of Taxation & Fin., 254 AD2d 409, 410 [1998]).

A timely motion to dismiss extends the time to answer until 10 days after service of notice of entry of the order denying the motion.

Darlind Construction, Inc. v. Prism Solar Technologies, Inc. · filed 2013-09-11(f)

It is undisputed that the defendant timely appeared by making a motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Thus, the defendant’s time to answer was extended until 10 days after the defendant was served with notice of entry of the order denying certain branches of that motion (see CPLR 3211 [f]).

After a defendant has answered, a motion seeking dismissal under CPLR 3211(a)(7) on grounds asserted in the answer should be denominated a summary judgment motion under CPLR 3212.

Sager v. County of Sullivan · filed 2016-12-01(a)(7)

Although defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), defendant had filed an answer and, thus, its motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in its answer (see Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]).

After a motion to dismiss is denied, failure to answer within 10 days of a written demand can establish a default under CPLR 3211(f).

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

On October 4, 2012, the petitioners/plaintiffs served a written demand that an answer be served within 10 days. By establishing that the appellants failed to comply with that demand, the petitioners/plaintiffs established the appellants’ default (see CPLR 3211 [f]).

CPLR 3211(f) extends the time to answer until 10 days after service of notice of entry of the order deciding a pre-answer motion to dismiss.

JPMorgan Chase Bank, N.A. v. Degennaro · filed 2018-07-05(f)

The time for the defendants to answer was extended until 10 days after service upon them of the order denying their pre-answer motion to dismiss, with notice of entry ( see CPLR 3211[f]; De Falco v JRS Confectionary, 118 AD2d 752).

Section 3211(f) starts the defendant's time to answer only after proper service of notice of entry of the order denying the motion to dismiss.

JBBNY, LLC v. Dedvukaj · filed 2019-04-10(f)

Contrary to the determination of the Supreme Court, since the plaintiff never served the Dedvukaj defendants with notice of entry of the June 2015 order denying their motion to dismiss the complaint, their answer was timely served, as their time to answer never started to run ( see CPLR 3211[f]; Lehifa Trading Co. v Russo Sec. , 205 AD2d 738, 738).

After a motion to dismiss is denied, the time to answer the complaint does not begin to run until the order is served with notice of entry.

Citibank, N.A. v. Brooks · filed 2020-02-19(f)

Without service of the order with notice of its entry, the time within which the defendants were required to answer the complaint did not begin to run ( see CPLR 3211[f]).

A motion made after the defendant has answered is treated as a CPLR 3212 summary judgment motion when it relies on CPLR 3211 (a) grounds asserted in the answer.

State of New York v. Konikov · filed 2020-04-09(a)

Because defendant filed an answer, his subsequent motion "was a CPLR 3212 motion for summary judgment that was based in part upon the CPLR 3211 (a) grounds asserted in the answer" ( DelVecchio v Collins , 178 AD3d 1336, 1336 n [2019] [internal quotation marks, brackets and citations omitted]).

A motion under Section 3211 extends the defendant’s time to answer, which can also extend the plaintiff’s time to amend the complaint as of right.

Estate of Tammy Colleen Feenin v. Bombace Wine & Spirits, Inc. · filed 2020-11-18(f)

The Bombace defendants' service of a motion, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them extended their time to answer ( see CPLR 3211[f]), and therefore extended the time in which the plaintiffs could amend their complaint as of right ( see CPLR 3025[a]; STS Mgt. Dev. v New York State Dept. of Taxation & Fin. , 254 AD2d 409, 410).

A motion to dismiss under CPLR 3211 extends the defendant's time to serve an answer.

Kelley v. Garuda · filed 2020-12-02(f)

Here, the defendant appeared in the action in May 2008, when he, among others, moved pursuant to CPLR 3211(a) to dismiss the complaint, which extended his time to serve an answer ( see CPLR 320[a]; 3211[f]).

Section 3211(f) extends the time to amend a pleading as of right when a motion to dismiss the pleading is pending, until 10 days after service of notice of entry of the order on that motion.

Matter of Part 60 RMBS Put - Back Litig. · filed 2021-04-13(f)

As a consequence, under CPLR 3211(f), Natixis' time, as of right, to serve an amended pleading was extended until 10 days after service [*6]of the notice of entry of the order on the motion to dismiss ( see e.g. Toikach v Basmanov , 31 Misc 3d 615, 618 [Sup Ct, Kings County 2011]).

A motion to dismiss extends the defendant's time to answer until ten days after service of notice of entry of the order deciding the motion.

Roam Capital, Inc. v. Asia Alternatives Mgt. LLC · filed 2021-05-20(f)

Since a motion to dismiss extends the defendant's time to answer the complaint "until ten days after service of notice of entry of the order" deciding the motion (CPLR 3211[f]), and since the court had not yet even decided defendant's CPLR 3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR 3025(b); instead, it could have amended as of right pursuant to CPLR 3025(a) ( see Nimkoff Rosenfeld & Schechter, LLP v O'Flaherty, 71 AD3d 533 [1st Dept 2010]; Gowen v Helly Nahmad Gallery, Inc., 60 Misc 3d 963, 979 [Sup Ct, NY County 2018], affd 169 AD3d 580 [1st Dept 2019]).

CPLR 3211(f) gives a defendant 10 days after service of an order denying its motion to dismiss to answer the complaint.

Hoffman v. 461 Arlington Props., LLC · filed 2021-06-30(f)

The defendant failed to timely answer the complaint within 10 days of being served with a copy of the order denying its motion to dismiss ( see CPLR 3211[f]).

When a motion to dismiss is held in abeyance, CPLR 3211(f) gives the defendant 10 days after service of notice of entry of the order deciding the motion to answer.

HSBC Bank USA, N.A.. v. Sewell · filed 2021-10-27(f)

In the order dated May 16, 2014, the court held that branch of the defendant's motion which was pursuant to CPLR 3211(a)(3) in abeyance pending the framed-issue hearing, and the defendant therefore had until 10 days after service of notice of entry of the order deciding that branch of the motion to file an answer ( see CPLR 3211[f]; U.S. Bank N.A. v Trulli , 179 AD3d 740, 742).

CPLR 3211(f) permits a defendant to answer within 10 days after service of notice of entry of an order denying a motion to dismiss.

DLJ Mtge. Capital, Inc. v. Christie · filed 2022-02-16(f)

Upon the denial of the defendants' cross motion, CPLR 3211(f) permitted an answer within 10 days from the service of notice of entry of the order.

CPLR 3211(f) governs the deadline to answer after a pre-answer motion to dismiss is denied.

HSBC Bank USA v. Pantel · filed 2022-08-17(f)

The plaintiff served this Court's decision and order with notice of entry on January 22, 2020. As such, the defendants time to serve an answer to the complaint expired on Monday, February 3, 2020 ( see CPLR 3211[f]; General Construction Law § 25-a[1]).

When an order dismissing a complaint under Section 3211(a) is reversed, Section 3211(f) requires the defendant to answer within 10 days after service of the reversal order with notice of entry.

S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc. · filed 2022-08-31(f)

Pursuant to CPLR 3211(f), the defendant was required to serve an answer within 10 days of service of the reversal order with notice of its entry.

Section 3211(f) gives a defendant 10 days to answer after a motion to dismiss is denied; failing to answer within that period can result in default.

Deutsch v. Augenstein · filed 2023-05-26(f)

The motion served to extend defendant's time to an answer by 10 days ( see CPLR 3211 [f]).

Section 3211(a) extends a defendant's time to answer the complaint when the defendant serves a notice of motion to dismiss.

Yawand-Wossen v. M Sq. Bldrs. LLC · filed 2024-07-11(a)

Service of a notice of motion to dismiss, pursuant to § 3211 (a), extends a defendant's time to answer the complaint (Deutsche Bank Natl. Tr. Co. v Hall, 185 AD3d 1006, 1008 [2d Dept 2020]).

After a pre-answer motion to dismiss is granted only in part, Section 3211(f) provides for an answer to the surviving claims within ten days after service of the order with notice of entry.

Gala v. City of New York · filed 2024-08-21(f)

Pursuant to CPLR § 3211(f), Defendants are directed to answer the extant portions of the Third Amended Complaint within ten (10) calendar days after electronic service of this Decision and Order with Notice of Entry by Plaintiffs' counsel on the Corporation Counsel.

Section 3211(f) requires a defendant to answer after its motion to dismiss is denied.

Nudelman v. Muller · filed 2025-05-19(f)

ORDERED that defendant shall interpose an answer pursuant to CPLR § 3211 [fl.

Section 3211(f) extends the time to answer until 10 days after service of notice of entry of the order deciding a motion to dismiss.

Tupper v. US Bank Trust N.A. · filed 2026-02-17(f)

Plaintiff’s motion for a default judgment against defendant US Bank is without merit as that defendant timely moved pursuant to CPLR §3211 and pursuant to CPLR §3211(f) service of a motion extends the time to serve a pleading until 10 days after the service of notice of entry of the order resulting from the motion to dismiss. Thus, defendant, US Bank’s time to answer has not yet expired.

Service of a pre-answer motion to dismiss extends the defendant’s time to answer until 10 days after service of notice of entry of the order deciding the motion.

Wells Fargo Bank, N.A. v. YSB Assets, LLC · filed 2026-03-18(f)

Pursuant to CPLR 3211(f), service of YSB's pre-answer motion to dismiss the amended complaint insofar as asserted against it extended YSB's time to answer the amended complaint until 10 days after service of notice of entry of the order determining the motion ( see Eaton v Bluestone , 226 AD3d 745, 746; Rosas v Petkovich , 218 AD3d 814, 816).

Section 3211(f) governs when an answer is due after a motion to dismiss.

Eastern Paralyzed Veterans Ass'n v. Metropolitan Transportation Authority · filed 1980-12-04(f)

The notice of appeal was filed before the appellants were required to serve their answer under CPLR 3211 (subd [f]). Therefore, the notice of appeal effectively stayed the order, entered March 17, 1980. (Public Authorities Law, § 1212-a, subd 3; CPLR 5519, subd [a], par 1.) Hence, appellants should not have been directed to serve an answer pending the determination of the appeal from the order entered March 17, 1980.

Under CPLR 3211(a)(1), allegations in earlier pleadings can serve as binding informal judicial admissions and documentary evidence supporting dismissal.

New Greenwich Litigation Trustee, LLC v. Citco Fund Services (Europe) B.V. · filed 2016-10-18(a)(1)

Further, we found such informal judicial admissions to constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1), which “flatly contradicted” the allegations of fraud in the complaint, and justified dismissal of the fraud claim (id. at 82). In sum, the motion court properly treated the derivative allegations against the funds’ management as informal judicial admissions binding on the funds and their Trustee in this litigation.

Under CPLR 3211(a)(1), an affidavit is not documentary evidence for a motion to dismiss.

Big Blue Prods., Inc. v. Arlia · filed 2020-10-28(a)(1)

Here, the affidavit submitted by Arlia is not "documentary evidence" within the meaning of CPLR 3211(a)(1) and should not have been considered by the Supreme Court in determining Arlia's motion ( see Hartnagel v FTW Contr. , 147 AD3d 819, 821; Flushing Sav. Bank, FSB v Siunykalimi , 94 AD3d 807, 809).

A temporary certificate of occupancy creates only a rebuttable presumption of legal compliance and does not warrant dismissal based on documentary evidence under CPLR 3211(a)(1).

Board of Managers of Loft Space Condominium v. SDS Leonard, LLC · filed 2016-09-27(a)(1)

A TCO merely creates a rebuttable presumption that a building complies with New York City law (see Board of Mgrs. of Olive Park Condominium v Maspeth Props. LLC, 2014 NY Slip Op 33012[U], *9-10 [Sup Ct, Kangs County 2014]; see also Solomons v Greens at Half Hollow, LLC, 26 Misc 3d 83, 86 [App Term, 2d Dept, 9th & 10th Jud Dists [2009]). Therefore, it is not the kind of documentary evidence that warrants granting a CPLR 3211 (a) (1) motion (see e.g. Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Under CPLR 3211(a)(1), documentary evidence must conclusively establish a defense to warrant dismissal.

David J. Gold, P.C. v. R.K.E. LLC · filed 2016-09-30(a)(1)

The motion court correctly concluded that the retainer agreement proffered by defendants in support of their CPLR 3211(a)(1) and (7) motion to dismiss does not conclusively establish a defense to plaintiff law firm's action to recover for legal services rendered ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues and conclusively disposes of the claim.

Jefferson Apts., Inc. v. Mauceri · filed 2016-07-25(a)(1)

To obtain a dismissal pursuant to CPLR 3211 (a) (1), the defendant must establish that the documentary evidence which forms the basis of the defense be such that it resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim ( see, Leon v Martinez , 84 NY2d 83 [1994]; see also, Sheridan v Town of Orangetown , 21 AD3d 365 [2005]). ... The branch of the motion seeking the complaint's dismissal based upon documentary evidence is denied. There are issues which are not conclusively resolved by the documentary evidence and other evidentiary facts tendered by the plaintiff (see, City Line Rent A Car, Inc. v Alfess Realty, LLC , 33 AD3d 835 , 836 [2006]).

On a motion to dismiss based on documentary evidence, the evidence must utterly refute the plaintiff’s factual allegations and conclusively establish a defense as a matter of law.

Urban Soccer Inc. v. Royal Wine Corp. · filed 2016-08-05

Further, where the defendant seeks to dismiss the complaint based upon documentary evidence, the motion will succeed if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff’s allegations and establishes a defense as a matter of law.

Reiss v. Deutsche Bank National Trust Co. · filed 2016-08-11(a)(1)

Since the “Hardship Affidavit” does not “utterly refute” plaintiffs’ contention that any effort by defendant to foreclose plaintiffs’ underlying mortgage obligation would be barred by the statute of limitations, defendant has failed to establish a defense as a matter of law warranting the dismissal of the complaint (Mendelovitz v Cohen, 37 AD3d 670, 670 [2007]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Affidavits and affirmations do not constitute documentary evidence for dismissal under CPLR 3211(a)(1).

Malekan v. 701-709 Chester St, LLC · filed 2016-05-18(a)(1)

Further, the defendants failed to establish their entitlement to dismissal of the cause of action for specific performance pursuant to CPLR 3211 (a) (1) insofar as asserted by the plaintiff 705 Chester Dev, LLC, against the defendant 701-709 Chester St, LLC. Although the defendants claimed that they were entitled to unilaterally cancel the contract because the plaintiffs were themselves allegedly in breach of the contract, the affidavit and affirmation proffered by the defendants in support of this contention did not constitute documentary evidence (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2010]; see also Shofel v DaGrossa, 133 AD3d 649, 650 [2015]).

Section 3211(a)(1) does not permit dismissal based on materials that fail to utterly refute the alleged contract, even if those materials qualify as documentary evidence.

Sabre Real Estate Group, LLC v. Ghazvini · filed 2016-06-01(a)(1)

Even assuming that such materials constitute documentary evidence within the meaning of CPLR 3211 (a) (1), they failed to utterly refute the existence of an express or implied contract for the payment of a commission by the defendants (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

An affidavit is not documentary evidence for a motion to dismiss under CPLR 3211 (a) (1).

Anglero v. Hanif · filed 2016-06-15(a)(1)

The affidavit relied upon by U-Haul to establish that the accident was intentionally caused does not constitute documentary evidence within the meaning of CPLR 3211 (a) (1) (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2010]; see also Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010]).

Dismissal under CPLR 3211(a)(1) requires documentary evidence that conclusively establishes a defense.

Building Exterior Servs. Trust of N.Y. v. A.W. Farrell & Son, Inc. · filed 2016-03-16(a)(1)

Under the circumstances, the present record fails to conclusively defeat plaintiff's claim that defendant was a member of BEST at the time the Trust Documents were executed.

Under CPLR 3211(a)(1), documentary evidence warrants dismissal only if it conclusively establishes a defense to the claims as a matter of law.

Spoleta Construction, LLC v. Aspen Insurance UK Ltd. · filed 2016-03-24(a)(1)

Under these circumstances, it cannot be said that the "documentary evidence submitted conclusively establishe[d] a defense to the asserted claims as a matter of law" (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; see Leon v Martinez, 84 NY2d 83, 88 [1994]).

CPLR 3211(a) permits dismissal based on documentary evidence only when it utterly refutes the complaint’s factual allegations and conclusively establishes a defense; dismissal for failure to state a cause of action is improper when the complaint states a valid claim.

Brown v. Brown · filed 2016-02-17(a)(1), (a)(7)

The Supreme Court also properly denied that branch of Linton’s cross motion which was pursuant to CPLR 3211 (a) to dismiss the complaint in action No. 2 insofar as asserted against him. The complaint stated a valid cause of action alleging breach of contract, for which AOA may seek specific performance, and Linton failed to submit documentary evidence that utterly refutes AOA’s factual allegations, thereby conclusively establishing a defense as a matter of law (see CPLR 3211 [a] [1], [7]; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]; R.I. Is. House, LLC v North Town Phase II Houses, Inc., 51 AD3d 890, 893-894 [2008]).

Documentary evidence supports dismissal under CPLR 3211(a)(1) only if it conclusively establishes a defense as a matter of law.

Mananghaya v. Bronx-Lebanon Hospital · filed 2016-02-25(a)(1)

The motion court correctly determined that the documentary evidence tendered by Aggreko — rental agreement terms and conditions unsigned by third-party plaintiff (the hospital) — did not conclusively establish a defense to the second third-party complaint as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Under CPLR 3211(a)(1), documentary evidence that conclusively establishes a defense supports dismissal of a complaint.

MCAP Robeson Apartments Ltd. Partnership v. MuniMae TE Bond Subsidiary, LLC · filed 2016-02-25(a)(1)

The documentary evidence and the parties’ unambiguous “commitment” agreement conclusively establish a defense to plaintiffs’ claims (see Daeun Corp. v A&L 444 LLC, 62 AD3d 479 [1st Dept 2009]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence when that evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

Meyer v. North Shore-Long Island Jewish Health System, Inc. · filed 2016-03-09(a)(1)

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiffs factual allegations, conclusively establishing a defense as a matter of law”

Section 3211(a)(1) permits dismissal when documentary evidence refutes the plaintiff’s factual allegations and conclusively disposes of the claims as a matter of law.

Mockin v. Astoria Federal Savings & Loan · filed 2016-03-16(a)(1)

Here, Astoria’s submission of 513’s corporate documents, which Juda presented at the closings on the mortgage loans and authorized Juda, as 513’s president, to act on behalf of 513 with regard to those transactions, utterly refuted the plaintiffs’ allegation that Juda lacked actual authority to mortgage 513’s property. Accordingly, the Supreme Court properly granted dismissal of the complaint pursuant to CPLR 3211 (a) (1).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it conclusively establishes a defense to the claim.

Mimosa Equities Corp. v. ACJ Associates LLC · filed 2016-01-14(a)(1)

Thus, the documentary evidence does not conclusively establish a defense to plaintiff’s claim that it is entitled to a refund of the escrowed monies (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Carver v. County of Nassau · filed 2016-01-27(a)(1)

Thus, the documentary evidence submitted by the defendants in support of their motion conclusively established a defense to the second cause of action as a matter of law (see CPLR 3211 [a] [1]).

Under CPLR 3211(a)(1), an agreement does not support dismissal unless it conclusively establishes a defense to the claims as a matter of law.

Wells Fargo Bank, N.A. v. Goans · filed 2016-02-03(a)(1)

Thus, the agreement did not “conclusively establish a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211 [a] [1]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint’s factual allegations and conclusively establishes a defense.

Batra v. Electronic Land Services, Inc. · filed 2016-02-10(a)(1)

The defendants established that documentary evidence, including deeds and a title insurance policy, utterly refuted the plaintiffs’ factual allegations, thereby conclusively establishing defenses as a matter of law (see CPLR 3211 [a] [1]; Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]; Eisner v Cusumano Constr., Inc., 132 AD3d 940, 941 [2015]).

Under CPLR 3211(a)(1), ambiguous documentary evidence cannot justify dismissing a cause of action.

Slezak v. Stewart's Shops Corp. · filed 2015-11-25(a)(1)

If documentary evidence contains a relevant ambiguity, such evidence cannot justify the dismissal of a cause of action (see Weston v Cornell Univ., 56 AD3d 1074, 1075 [2008]; Mendelovitz v Cohen, 37 AD3d 670, 671 [2007]).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it utterly refutes the allegations and conclusively establishes a defense as a matter of law.

Mitchell v. Diji · filed 2015-12-09(a)(1)

Moreover, contrary to Diji’s contention, the documentary evidence he submitted in support of his motion does not utterly refute these allegations, and, thereby, conclusively establish a defense as a matter of law (see generally CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

Under § 3211(a)(1), a release does not conclusively establish a defense when the record shows that its general terms may not reflect the parties’ intentions.

International Asbestos Removal v. Beys Specialty, Inc. · filed 2016-01-12(a)(1)

However, when the evidence in the record including, inter alia, the circumstances surrounding the release, as well as the parties’ course of dealings, evinces that the parties’ intentions were not reflected in the general terms of the release, the release does not conclusively establish a defense as a matter of law (see Spectrum Painting Contrs., Inc. v Kreisler Borg Florman Gen. Constr. Co., Inc., 64 AD3d 565, 578 [2d Dept 2009]; E-J Elec. Installation Co. v Brooklyn Historical Socy., 43 AD3d 642, 643-644 [1st Dept 2007]; West End Interiors v Aim Constr. & Contr. Corp., 286 AD2d 250, 251-252 [1st Dept 2001]).

Under CPLR 3211(a)(1), documentary evidence supports dismissal only if it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Nisari v. Ramjohn · filed 2011-06-21(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence which forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs claim (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005]; FG Harriman Commons, LLC v FBG Owners, LLC, 75 AD3d 527, 527-528 [2010]; GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611, 613 [2008]).

Under CPLR 3211(a)(1), affidavits do not qualify as documentary evidence supporting dismissal.

Summer v. Severance · filed 2011-06-21(a)(1)

Here, the affidavits relied upon by the defendant in support of the motion did not qualify as documentary evidence under CPLR 3211 (a) (1).

Under CPLR 3211(a)(1), documentary evidence warrants dismissal only if it conclusively establishes a defense to the claim as a matter of law.

Ginsburg Development Companies, LLC v. Carbone · filed 2011-06-28(a)(1)

Moreover, the documentary evidence does not establish, as a matter of law, a defense to the third cause of action.

Under CPLR 3211(a)(1) and (3), documentary evidence does not warrant dismissal for lack of standing unless it conclusively establishes that the plaintiff lacks shareholder status.

Verdone v. Suffolk Anesthesiology Associates, P.C. · filed 2011-06-28(a)(1) and (3)

The Supreme Court properly denied the defendants’ motion ... pursuant to CPLR 3211 (a) (1) and (3) to dismiss the action based upon documentary evidence and lack of standing, as the documentary evidence submitted by the defendants did not conclusively establish that the plaintiff was not a shareholder of the subject corporations and, therefore, lacked standing to commence this action (see Levin v Kitsis, 82 AD3d 1051, 1051-1052 [2011]; Dean v Harvestime Tabernacle United Pentecostal Church Intl., 79 AD3d 793, 795 [2010]; Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 576-577 [2008]).

Personal affidavits are not documentary evidence under CPLR 3211(a)(1); qualifying documents must be valid on their face and directly establish a defense as a matter of law.

Sheinkin v. Simon Property Group, Inc. · filed 2011-06-28(a)(1)

Personal affidavits are not “documentary evidence” of the sort that was intended by CPLR 3211 (a) (1), since the paragraph could otherwise become a vehicle for dismissal on any ground that could be founded on an affidavit. Proper documentary evidence for a motion under CPLR 3211 (a) (1) must be valid on its face and directly prove a defense as a matter of law.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues and conclusively disposes of the plaintiff’s claims.

Bonded Waterproofing Services, Inc. v. Anderson-Bernard Agency, Inc. · filed 2011-07-05(a)(1)

Furthermore, the documentary evidence submitted by A-B and Bernard, including the insurance policy and the certificate of insurance, did not resolve “all factual issues as a matter of law, and conclusively dispose [ ] of the plaintiffs claim[s]” (Trade Source v Westchester Wood Works, 290 AD2d 437, 437 [2002] [internal quotation marks omitted]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144,152 [2002]).

Under CPLR 3211(a)(1), affidavits are not documentary evidence, and evidence offered on a motion to dismiss must definitively refute the claim.

James v. Bain · filed 2011-07-07(a)(1)

Thus, as in Lopes v Bain (supra), we find that the affidavits submitted in support of defendant’s motion to dismiss based upon CPLR 3211 (a) (1) do not constitute “documentary evidence” as contemplated by that provision and, even assuming the transcript of the plea allocution may so qualify, it still fails to “definitively refute, as a matter of law, plaintiff[s’] claim that there was implied permission” (Lopes v Bain, 82 AD3d at 1554; see Crepin v Fogarty, 59 AD3d 837, 838 [2009]; Siegel, NY Prac § 259, at 440-441 [4th ed]; see also Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, 2011 Pocket Part, at 5).

Under CPLR 3211(a)(1) and (7), a complaint survives dismissal when favorable inferences support its claim and the documentary evidence does not conclusively dispose of it.

Goldstein v. Derecktor Holdings, Inc. · filed 2011-06-07(a)(1) and (7)

Contrary to the Supreme Court’s determination, according the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the second amended complaint adequately states the elements of a cause of action based on quantum meruit (see generally Corsello v Verizon N.Y., Inc., 77 AD3d 344 [2010]). Moreover, the documentary evidence submitted by the defendant on its motion did not resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs claim (see Elow v Svenningsen, 58 AD3d 674 [2009]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when the evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

Orangetown Home Improvements v. Kiernan · filed 2011-05-10(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence must “utterly refute[ ] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Springer v Almontaser, 75 AD3d 539, 540 [2010] [internal quotation marks omitted]).

Under CPLR 3211(a)(1), documentary evidence must resolve all factual issues and conclusively dispose of the claim to warrant dismissal.

Thomas A. Sbarra Real Estate, Inc. v. Lavelle-Tomko · filed 2011-05-12(a)(1)

As the proffered documentary evidence does not “resolve[ ] all factual issues as a matter of law, and conclusively dispose[ ] of the plaintiffs’] claim” (Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]), defendant’s motion to dismiss the complaint was properly denied.

Under CPLR 3211(a)(1), documentary evidence warrants dismissal when it refutes the allegations and establishes a defense as a matter of law.

O'Callaghan v. Brunelle · filed 2011-05-17(a)(1)

The documentary evidence in support of the motion, including decisions from the NYSE and SEC, refuted plaintiffs allegations ... and established a defense as a matter of law warranting dismissal of the complaint (see Minkow v Sanders, 82 AD3d 597 [2011]; see also CPLR 3211 [a] [1]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence when it utterly refutes the plaintiff’s factual allegations or conclusively establishes a defense as a matter of law.

Jones v. OTN Enterprise, Inc. · filed 2011-05-17(a)(1)

Contrary to the appellant’s contention, the documentary evidence it submitted did not utterly refute the plaintiffs factual allegations or conclusively establish a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211(a)(1) requires admissible documentary evidence that conclusively resolves factual issues and establishes a defense as a matter of law.

Artis v. Random House, Inc. · filed 2011-05-20(a)(1)

Dismissal of the complaint’s claims pursuant to CPLR 3211 (a) (1) requires documentary evidence in admissible form that conclusively resolves all factual issues and establishes a defense as a matter of law.

Under CPLR 3211(a)(1), affidavits and deposition testimony are not documentary evidence that may be considered on a motion to dismiss.

Correa v. Orient-Express Hotels, Inc. · filed 2011-05-26(a)(1)

Neither the affidavit nor the deposition testimony defendant offered constitutes the type of documentary evidence that may be considered on a motion pursuant to CPLR 3211 (a) (1) (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).

Under CPLR 3211(a)(1), a movant fails to meet its burden when its own documentary evidence undermines its entitlement to dismissal.

Burry v. Madison Park Owner · filed 2011-05-31(a)(1)

Supreme Court properly determined that defendant failed to meet its burden as the movant on its motion to dismiss the first cause of action, for breach of contract, pursuant to CPLR 3211 (a) (1), because the very documentary evidence upon which defendant’s motion is premised undermines its entitlement to dismissal.

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues and conclusively defeats the claim.

Vaughns v. Kirkland · filed 2011-06-07(a)(1)

“A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the ‘documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim’ ” (Fontanetta v John Doe 1, 73 AD3d 78, 83-84 [2010], quoting Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002]). Here, the defendant has not met that burden.

CPLR 3211(a)(1) requires documentary evidence that conclusively establishes the facts supporting dismissal.

Eldridge v. Carmel Central School District Board of Education · filed 2011-03-29(a)(1)

Additionally, the defendants failed to submit documentary evidence conclusively establishing that the payments made to Gramando on or before April 9, 2007, were properly certified as required by Civil Service Law § 100 (1) (a). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the first cause of action insofar as asserted against the individual defendants pursuant to CPLR 3211 (a) (1).

Letters from an attorney or claims service do not qualify as documentary evidence for dismissal under CPLR 3211(a)(1).

Integrated Construction Services, Inc. v. Scottsdale Insurance · filed 2011-03-29(a)(1)

The letters from the attorney and claims service relied upon by Scottsdale do not constitute “documentary evidence” for the purposes of CPLR 3211 (a) (1).

Affidavits do not qualify as documentary evidence for dismissal under CPLR 3211(a)(1).

Lopes v. Bain · filed 2011-03-31(a)(1)

Defendant’s proof in support of his claim of a complete defense pursuant to Vehicle and Traffic Law § 388 consists mainly of affidavits, which do not meet the requirements of “documentary evidence” as contemplated by CPLR 3211 (a) (1) (see Crepin v Fogarty, 59 AD3d 837, 838 [2009]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).

Under CPLR 3211(a)(1), a defendant seeking dismissal based on documentary evidence must show that the evidence conclusively refutes the plaintiff’s allegations.

BAKOS, WALTER R. v. NEW YORK CENTRAL MUTUAL FIRE INSURA · filed 2011-04-01(a)(1)

With respect to that part of the motion to dismiss the first cause of action based on documentary evidence, defendant was required to demonstrate “that the documentary evidence conclusively refutes plaintiff’s . . . allegations” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591).

Section 3211(a)(1) permits dismissal when documentary evidence refutes the complaint’s allegations.

Win Hay LLC v. Chin · filed 2011-04-07(a)(1)

The documentary evidence refuted plaintiffs allegations that plaintiff retained Choi to represent it in connection with its application for a tax exemption for certain real property (see CPLR 3211 [a] [1]).

Documentary evidence warrants dismissal under CPLR 3211(a)(1) only if it conclusively establishes a defense to the claims as a matter of law.

Palmetto Partners, L.P. v. AJW Qualified Partners, LLC · filed 2011-04-12(a)(1)

On a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), “dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when the evidence utterly refutes the plaintiff’s allegations and conclusively establishes a defense as a matter of law.

Rietschel v. Maimonides Medical Center · filed 2011-04-12(a)(1)

The evidence the defendants submitted either was not documentary within the meaning of CPLR 3211 (a) (1) or failed to utterly refute the plaintiffs allegations and conclusively establish a defense as a matter of law (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010]).

Section 3211(a)(1) permits dismissal when a submitted document conclusively disproves the agreement alleged in the complaint.

Village Group 30, Inc. v. Cho · filed 2011-04-19(a)(1)

Contrary to the plaintiff’s contention, the June 3, 2008, mortgage note issued in favor of the defendant’s wife, which the defendant submitted in support of his motion to dismiss the complaint insofar as asserted against him, conclusively demonstrated that the defendant did not agree to provide such discharge in consideration for the security interest issued in favor of the defendant’s wife as set forth in the June 3, 2008, mortgage note (see CPLR 3211 [a] [1]; ...).

Under CPLR 3211(a)(1), deeds, mortgages, and notes can qualify as documentary evidence supporting a motion to dismiss.

Forbes v. Aaron · filed 2011-02-22(a)(1)

Deeds, mortgages, and notes can qualify as “documentary evidence” for the purpose of CPLR 3211 (a) (1) (see Datena v JP Morgan Chase Bank, 73 AD3d 683 [2010]; Crepin v Fogarty, 59 AD3d 837 [2009]; Bronxville Knolls v Webster Town Ctr. Partnership, 221 AD2d 248 [1995]; see also Fontanetta v John Doe 1, 73 AD3d 78 [2010]; compare Suchmacher v Manana Grocery, 73 AD3d 1017, 1017 [2010]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when it conclusively establishes a defense as a matter of law.

Lapine v. Seinfeld · filed 2011-02-23(a)(1)

When documentary evidence under CPLR 3211 (a) (1) is considered, “a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to ... the asserted claims as a matter of law.”

An affidavit does not qualify as documentary evidence under CPLR 3211(a)(1); documentary evidence must be unambiguous, authentic, and undeniable.

Treeline 1 OCR, LLC v. Nassau County Industrial Development Agency · filed 2011-03-01(a)(1)

This affidavit, however, was insufficient to qualify as documentary evidence under CPLR 3211 (a) (1) (see Fontanetta v John Doe 1, 73 AD3d at 84-87). In order to be documentary, the evidence must be unambiguous, authentic, and undeniable; thus, affidavits are not considered documentary evidence (see Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2010]; Fontanetta v John Doe 1, 73 AD3d at 85).

On a CPLR 3211 motion to dismiss, the court need not accept factual allegations negated by documentary evidence.

Williams-Smith v. MTA New York City Transit · filed 2011-03-10

However, the court is not required to accept factual allegations that are negated by documentary evidence (see Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). Here, the documentary evidence conclusively establishes that the notice of claim was mailed 91 days after the accident, thus missing by one day the 90-day notice of claim requirement set forth in General Municipal Law § 50-e (1) (a).

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when it leaves a factual dispute unresolved.

Adler v. 20/20 Companies · filed 2011-03-15(a)(1)

Under the circumstances, the documentary evidence submitted by 20/20 did not resolve all of the factual issues as a matter of law, and the motion to dismiss the amended complaint was properly denied insofar as asserted against 20/20 by the plaintiffs Stephen Bausenwein, Arthur Landsman, A1 Deichler, Rich Herbst, Joe O’Brien, and Dan Watts (see Siddiqui v Nationwide Mut. Ins. Co., 255 AD2d 30 [1999]).

Under CPLR 3211(a)(1), dismissal requires materials that qualify as documentary evidence.

Comito v. Foot of Main, LLC · filed 2011-03-22(a)(1)

The items submitted to the Supreme Court by the defendants in support of their motion do not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1) (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1149-1150 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 85-87 [2010]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively establishes a defense as a matter of law.

Levin v. Kitsis · filed 2011-03-22(a)(1)

On a motion to dismiss pursuant to CPLR 3211 (a) (1), “dismissal is warranted only if the documentary evidence submitted ... conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

CPLR 3211(a)(1) permits dismissal when documentary evidence wholly refutes the plaintiff’s allegations and conclusively establishes a defense.

Wood v. Long Island Pipe Supply, Inc. · filed 2011-03-22(a)(1)

Here, the Supreme Court properly, in effect, granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1), since the agreement executed by the parties clearly expressed that the term of the plaintiffs employment was for five years commencing December 1, 2001, and that the written agreement completely encompassed the agreement between them.

Under CPLR 3211(a)(1), documentary evidence supports dismissal when it resolves all factual issues as a matter of law and conclusively disposes of the claim.

Country Pointe at Dix Hills Home Owners Ass'n v. Beechwood Organization · filed 2011-01-18(a)(1)

“To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Trade Source v Westchester Wood Works, 290 AD2d 437 [2002], citing Teitler v Pollack & Sons, 288 AD2d 302 [2001]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Leon v Martinez, 84 NY2d 83 [1994]).

Under CPLR 3211(a)(1), contract documents must conclusively establish a defense to support dismissal.

Ostberg v. Litric · filed 2011-01-20(a)(1)

The complaint properly states a cause of action for confirmation of the architect’s decision, and defendant failed to demonstrate that the contract documents conclusively establish a defense to that cause of action.

Under CPLR 3211(a)(1), documentary evidence does not warrant dismissal when it leaves factual issues unresolved.

Compañía de Inversiones de Engergía S.A. v. AEI · filed 2011-01-27(a)(1)

We agree with the motion court that the documentary evidence submitted in support of defendant’s motion to dismiss fails to resolve all factual issues concerning whether the parties’ restructuring agreement constitutes an “acknowledgment or promise” within the meaning of General Obligations Law § 17-101, and is sufficient to revive defendant’s time-barred claim on certain debts owed by plaintiff under bonds issued in 1997.

On a motion to dismiss under CPLR 3211(a)(1), tax documents identifying workers as independent contractors did not conclusively establish that status.

Hernandez v. Chefs Diet Delivery, LLC · filed 2011-02-01(a)(1)

Initially, the federal income tax documents submitted by the defendants which identified some of the plaintiffs as independent contractors were insufficient to conclusively establish that the plaintiffs and the other drivers in the putative class were independent contractors.

An affidavit and a letter from the plaintiff’s attorney do not qualify as documentary evidence under CPLR 3211(a)(1).

Granada Condominium III Ass'n v. Palomino · filed 2010-11-23(a)(1)

Here, the material submitted by the defendant in support of her motion, namely, her own affidavit and a letter sent to her from the plaintiffs attorney, did not constitute “documentary evidence” within the meaning of CPLR 3211 (a) (1).

On a motion under CPLR 3211(a)(1), an attorney’s affidavit may submit documentary evidence even if the attorney lacks first-hand knowledge of the underlying facts.

Furlender v. Sichenzia Ross Friedman Ference LLP · filed 2010-12-07(a)(1)

The affidavit of defendant’s attorney was a proper vehicle for the submission of acceptable attachments providing “ ‘evidentiary proof in admissible form’, e.g., documents,” even though the attorney had no first-hand knowledge of the underlying facts (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).

Under CPLR 3211(a)(1) and (3), dismissal was unwarranted where the documentary evidence did not conclusively establish the defendant’s defense and the defendant did not make a prima facie showing that the plaintiff lacked standing or capacity to sue.

Dean v. Harvestime Tabernacle United Pentecostal Church International · filed 2010-12-14(a)(1), (3)

Furthermore, contrary to the defendants’ contentions, the Supreme Court did not err in denying that branch of their motion which was pursuant to CPLR 3211 (a) (1) and (3) to dismiss the complaint insofar as asserted against Byrd, since the documentary evidence submitted with the motion did not conclusively establish Byrd’s defense to the action, and Byrd did not establish, prima facie, that Dean lacked standing or capacity to sue.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law.

Lobaina v. Human Resources Administration · filed 2010-12-14(a)(1)

“Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” ... Moreover, the documentary evidence submitted by the respondent conclusively established a defense to this proceeding as a matter of law (see Matter of Owens Rd. Assoc., LLC v Town Bd. of Town of Goshen, 50 AD3d 908 [2008]).

Section 3211(a)(1) does not support dismissal of a contract claim when the defendant’s submissions fail to establish grounds for dismissal.

Plaza PH2001, LLC v. Plaza Residential Owners LP · filed 2010-12-21(a)(1)

However, plaintiff stated a cause of action for breach of contract by alleging that certain aspects of the finished penthouse apartment did not conform to the specifications of the condominium offering plan incorporated by reference into the purchase agreements, and defendants’ submissions failed to establish grounds to dismiss the contract claim pursuant to CPLR 3211 (a) (1).

CPLR 3211(a)(1) requires documentary evidence to establish a defense as a matter of law to support dismissal.

Klamar v. Marsans · filed 2010-12-21(a)(1)

Moreover, the documentary evidence submitted by the defendant failed to establish a defense to the action as a matter of law.

CPLR 3211 (a) (1) requires documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim.

Paramount Transportation System Inc. v. Lasertone Corp. · filed 2010-08-03(a)(1)

Further, a party seeking to dismiss pursuant to CPLR 3211 (a) (1) “must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim” (Elow v Svenningsen, 58 AD3d 674, 675 [2009]; see Galvan v 9519 Third Ave. Rest. Corp., 74 AD3d 743 [2010]).

Under § 3211(a)(1), documentary evidence must conclusively establish the asserted ground for dismissal.

Cinelli Builders, Inc. v. Ferris · filed 2010-08-17(a)(1)

Based on the foregoing, the defendants failed to establish conclusively that the plaintiff was engaged in home improvement as that term was then defined in the Code of the Village of East Hampton (see Marciano Constr. Corp. v Stout, 12 Misc 3d 1152[A], 2006 NY Slip Op 50874[U] [2006]; see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; cf. J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 740-741 [2009]; Blake Elec. Contr. Co.v Paschall, 222 AD2d 264, 265-266 [1995]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

Fbangione v. Levine · filed 2010-09-14(a)(1)

To succeed on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) based on a defense founded upon documentary evidence, the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiffs’ claim (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Fontanetta v John Doe 1, 73 AD3d 78 [2010]; Newcomb v Sims, 63 AD3d 1022, 1023 [2009]).

Section 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense as a matter of law.

Rozen v. Russ & Russ, P.C. · filed 2010-09-14(a)(1)

Thus, the documentary evidence submitted by the Russ attorneys and Portabella did not “conclusively establish[ ] a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326), and the Supreme Court therefore erred in determining that the sixth cause of action was subject to dismissal pursuant to CPLR 3211 (a) (1).

Under CPLR 3211(a)(1), a proprietary lease can support dismissal when its terms definitively establish that the defendant owed no duty of care.

Nussbaum v. 150 West End Avenue Owners Corp. · filed 2010-09-28(a)(1)

... motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as against it, unanimously affirmed, without costs. The clause in the proprietary lease placing “sole responsibility” for maintenance and repair of the unit’s interior, “including interior walls, floors and ceilings, but excluding windows . . . [and] entrance and terrace doors,” on the unit’s lessee, definitively establishes that defendant coop, the building’s owner, owed plaintiffs, one of the unit’s lessees and her injured spouse, no duty of care with respect to the allegedly defective shower door (see Machado v Clinton Hous. Dev. Co., Inc., 20 AD3d 307 [2005]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 182 [2006]).

Section 3211(a)(1) permits dismissal only when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim.

41 North 73 West, Inc. v. Westair Aviation Services, LLC · filed 2010-10-12(a)(1)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must resolve all factual issues as a matter of law, and conclusively dispose of the plaintiffs claim (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]; FG Harriman Commons, LLC v FBG Owners, LLC, 75 AD3d 527 [2010]; Hallman v Kantor, 72 AD3d 895, 896 [2010], lv denied 15 NY3d 706 [2010]; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650 [2010]; McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646, 647 [2008]).

Section 3211(a)(1) permits dismissal based on documentary evidence only when the documents conclusively establish a defense.

Kram Knarf, LLC v. Djonovic · filed 2010-06-22(a)(1)

The documents do not conclusively establish that defendants’ explanation was correct, and thus do not constitute a defense based on “documentary evidence” (CPLR 3211 [a] [1]).