N.Y. C.P.L.R. § 3211

On a motion to dismiss a claim as time-barred, the defendant initially bears the burden of showing that the time to sue has expired.

Young v. New York City Tr. Auth. · filed 2025-04-10(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.

On a motion to dismiss under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a factual question about tolling or another reason the period does not apply.

Nechadim Corp. v. 500 Putnam St. Realty, LLC · filed 2025-04-16(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that [*2]the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( RTT Holdings, LLC v Nacht , 206 AD3d 834, 835). "If such prima facie showing is made, the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" ( id. ).

On a motion to dismiss under section 3211(a)(5) as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then show that the claim is timely, tolled, or subject to an exception.

C. R. J. v. Oswego County · filed 2025-04-25(a)(5)

" 'On a motion to dismiss pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the defendant has the initial burden of establishing that the limitations period has expired' " ( Falletta v Norman , 220 AD3d 1207, 1208 [4th Dept 2023]). "If the defendant meets that burden, the burden then shifts to the plaintiff to aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( Morales v Arrowood Indem. Co. , 203 AD3d 1603, 1607 [4th Dept 2022] [internal quotation marks omitted]).

On a motion to dismiss as time barred under section 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a question of fact.

Onco360 Holdings 1, Inc. v. McDermott Will & Emery, LLP · filed 2025-05-14(a)(5)

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to bring that cause of action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact" ( Sunyoung Jung v Reiner & Kaiser Assoc. , 220 AD3d 643, 644; see Fraumeni v Law Firm of Jonathan D'Agostino, P.C. , 215 AD3d 803, 804).

On a limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a factual question about tolling, inapplicability, or timely commencement.

Deutsche Bank Natl. Trust Co. v. Sylvestre · filed 2025-05-21(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( U.S. Bank N.A. v Derissaint , 193 AD3d 790, 791). Where a defendant satisfies the initial burden of proof on a motion pursuant to CPLR 3211(a)(5), "'the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period'" ( Buss v Stryker Corp. , 226 AD3d 959, 960, quoting Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then provide evidentiary facts showing the action was timely commenced.

Mandour v. Rafalsky · filed 2025-05-27(a)(5)

On a motion to dismiss a cause of action under CPLR 3211(a)(5), a defendant must establish, prima facie, that the time within which to sue has expired ( see Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP , 188 AD3d 530, 531 [1st Dept 2020]). Once that showing has been made, the burden shifts to plaintiffs to offer evidentiary facts establishing that the action was timely commenced ( see MTGLQ Invs., LP v Wozencraft , 172 AD3d 644, 664-645 [1st Dept 2019], lv dismissed 34 NY3d 1010 [2019]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Wells Fargo Bank, N.A. v. Leopold & Assoc., PLLC · filed 2025-05-28(a)(5)

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Cruz v Guaba , 226 AD3d 964, 965 [internal quotation marks omitted]).

Section 3211(a)(5) requires a defendant seeking dismissal on statute of limitations grounds to make a prima facie showing that the time to sue has expired.

Rotonde v. Stewart Title Ins. Co. · filed 2025-06-06(a)(5)

Even if the Court were not to find that the complaint failed to state a claim against Kaufman, it would still have to dismiss Kaufman from the action because it has long been settled that "to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired." Savarese v. Shatz , 273 AD2d 219, 220, 708 N.Y.S.2d 642 (2d Dept. 2000). ... As to those claims, Kaufman has satisfied his prima facie burden of establishing their untimeliness.

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a factual issue about timeliness, tolling, or another reason the limitations period does not apply.

Bank of N.Y. Mellon v. Jones · filed 2025-06-18(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time [*2]in which to commence the action has expired ( see U.S. Bank N.A. v Derissaint , 193 AD3d 790, 791). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period ( see id. ).

CPLR 3211(a)(5) permits dismissal of a claim filed after the applicable statute of limitations.

Obah v. Archdiocese of N.Y. · filed 2025-06-25(a)(5)

Pursuant to CPLR 3211(a)(5), a claim may be dismissed if it was asserted past the applicable statute of limitations.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then show the action was timely or raise a factual question about timeliness.

Deutsche Bank Natl. Trust Co. v. Pena · filed 2025-07-02(a)(5)

The Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. "On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Hudson City Sav. Bank, FSB v Schoenfeld , 172 AD3d 692, 693). "The burden then shift[s] to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely" ( U.S. Bank N.A. v Martin , 144 AD3d 891, 892).

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute of limitations grounds bears the initial burden of showing that the time to commence the action has expired.

Universal Remote Control, Inc. v. ADP Totalsource, Inc. · filed 2025-07-07(a)(5)

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired." Lambos v. Karabinis , 2025 WL 1583091, at *1 (3d Dept. June 5, 2025). Marmo has not made this showing.

A respondent seeking dismissal under CPLR 3211(a)(5) as time-barred must first show that the time to sue has expired.

Matter of Mastromonaco v. Planning Bd. of the Town of Cortlandt · filed 2025-07-23(a)(5)

A respondent who seeks dismissal of a petition pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029).

On a motion to dismiss under CPLR §3211(a)(5) as time barred, the defendant must first establish that the time to commence the action has expired.

Pintauro v. Saybrook Univ. · filed 2025-07-23(a)(5)

On a motion to dismiss pursuant to CPLR §3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( Deutsche Bank Natl. Trust Co. v Natal , 217 AD3d 835, 836 [2023]).

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant initially must show that the time to sue has expired.

New York Bus Operators Compensation Trust v. American Home Assur. Co. · filed 2025-08-06(a)(5)

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Collins-Genova v Louros , 204 AD3d 748, 749 [internal quotation marks omitted]; see Hershman v Bank of N.Y. Mellon , 219 AD3d 812, 814).

On a CPLR 3211(a)(5) motion, once the defendant makes a prima facie showing that the action is time-barred, the plaintiff must raise a question of fact about tolling, another reason the limitations period does not apply, or timely commencement.

U.S. Bank Trust, N.A. v. RE STT, LLC · filed 2025-08-27(a)(5)

Since this action was commenced more than six years later, RE STT met its initial burden of establishing, prima facie, that this action was time-barred ( see Islandcap, LLC v Cohen , 230 AD3d 660, 662; U.S. Bank Trust, N.A. v Giangrande , 229 AD3d 834, 835). The burden then shifted to the plaintiff "to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" ( Kaul v Brooklyn Friends Sch. , 220 AD3d 939, 941 [internal quotation marks omitted]; see U.S. Bank N.A. v Marrero , 221 AD3d 631, 632). The plaintiff failed to meet this burden.

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant must first show that the time to commence the action has expired.

Bank of N.Y. Mellon v. Munet · filed 2025-08-27(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" (Islandcap, LLC v Cohen, 230 AD3d 660, 661 [internal quotation marks omitted]).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of limitations, the defendant must make a prima facie showing that the time to sue has expired.

Lam Hong Chan v. New York Life Ins. & Annuity Corp. · filed 2025-09-10(a)(5)

"'On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the burden of [establishing], prima facie, that the time in which to sue has expired'" ( Filasky v Andover Cos. , 230 AD3d 1297, 1298, quoting Morrow v [*2]Vibration Mountings & Controls, Inc. , 223 AD3d 736, 737-738; see Edem v Wondemagegehu , 175 AD3d 466, 466).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a factual question about tolling or another reason the period does not apply.

Mitchell v. New York City Health & Hosps. Corp. · filed 2025-09-12(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. If such prima facie showing is made, the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable."

Section 3211(a)(5) permits dismissal of a complaint as time-barred when the defendant establishes that the limitations period has expired and the plaintiff fails to raise a question of fact.

U.S. Bank Trust N.A. v. Braun · filed 2025-10-15(a)(5)

In opposition, the plaintiff failed to raise a question of fact. Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

On a motion to dismiss as untimely under CPLR 3211(a)(5), the defendant must first establish that the time to sue expired; the plaintiff must then raise a factual question about tolling or why the time limit does not apply.

Bamonte v. Charatan · filed 2025-11-12(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as untimely, a defendant must establish, prima facie, that the time in which to commence the action has expired ( see Barbetta v Facchini , 236 AD3d 623, 625; Lambro Indus., Inc. v Gilbert , 233 AD3d 765, 766; Kaul v Brooklyn Friends Sch. , 220 AD3d 939, 940-941). If the defendant meets his or her initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable ( see Barbetta v Facchini , 236 AD3d at 625; see also Cruz v Guaba , 226 AD3d 964, 965; Webster v Sherman , 165 AD3d 738, 741).

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then provide evidentiary facts showing timeliness, tolling, or an exception.

P.E. v. Erie County · filed 2025-12-23(a)(5)

In moving to dismiss on statute of limitations grounds, a defendant has "the initial burden of establishing prima facie that the time in which to sue ha[s] expired" ( Chaplin v Tompkins , 173 AD3d 1661, 1662 [4th Dept 2019] [internal quotation marks omitted]; see Larkin v Rochester Hous. Auth. , 81 AD3d 1354, 1355 [4th Dept 2011]). "If the defendant meets that burden, the burden then shifts to the plaintiff to aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( Morales v Arrowood Indem. Co. , 203 AD3d 1603, 1607 [4th Dept 2022] [internal quotation marks omitted]).

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then raise a factual question about tolling.

450 Gin Lane SH, LLC v. Gentry Constr. Co., Inc. · filed 2026-01-21(a)(5)

"On a motion to dismiss . . . pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Anderson v Pinn , 185 AD3d 534, 535; see HSBC Bank USA, N.A. v Grella , 176 AD3d 924, 925). "'If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled'" ( Anderson v Pinn , 185 AD3d at 535, quoting HSBC Bank USA, N.A. v Grella , 176 AD3d at 925).

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute of limitations grounds must first show that the time to commence the action has expired.

Kuzar v. Spar & Bernstein · filed 2026-02-11(a)(5)

"On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Kitty Jie Yuan v 2368 W. 12th St., LLC , 119 AD3d 674 [2d Dept 2014]). ... In the matter at bar, defendant fails to demonstrate, prima facie , that plaintiff failed to commence the action within three years of the alleged malpractice.

Under CPLR 3211(a)(5), a defendant seeking dismissal as time barred must establish when the claim accrued to make a prima facie showing that the time to sue has expired.

Lichtenstein v. Cohen · filed 2026-02-20(a)(5)

Here, defendant's submission does not establish prima facie entitlement to dismiss the complaint pursuant to CPLR 3211. Defendant in her submission did not provide an accrual date for which plaintiffs action is time barred.

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute-of-limitations grounds initially must make a prima facie showing that the time to sue has expired.

USA Medlog, Inc. v. City of New York · filed 2026-02-21(a)(5)

“A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired” (Kogut v Village of Chestnut Ridge, 214 AD3d 777, 778 [2d Dept 2023] quoting Listwon v 500 Metro Owner, LLC, 188 AD3d 1028 [2d Dept 2020]).

A pre-answer motion to dismiss that raises the statute of limitations preserves that defense when the motion is granted on renewal, even if the defendant did not timely answer or vacate a default.

U.S. Bank Natl. Assn. v. Mitchell · filed 2026-02-25(a)

Here, the defendant raised this affirmative defense in a pre-answer motion to dismiss the complaint insofar as asserted against him. While the defendant's pre-answer motion was originally denied, the defendant thereafter moved for leave to renew that motion based upon a change in the law. As the pre-answer motion was ultimately granted upon renewal, the defendant did not waive the affirmative defense of statute of limitations by failing to timely answer the complaint ( contra id. ) or by failing to vacate his default ( contra Ocwen Loan Servicing, LLC v Coles , 223 AD3d 678, 680).

Section 3211(a)(5) permits dismissal on statute-of-limitations grounds; a court may treat a motion mislabeled under subsection (a)(1) as one under subsection (a)(5) when the plaintiff understood the defense.

Duncan v. Cadman Assoc. LLC · filed 2026-03-02(a)(5)

Although the motions were made pursuant to CPLR 3211 (a) (1), both motions should have been made pursuant to CPLR 3211 (a) (5). CPLR 3211 (a) (5), as relevant here, provides that a party may move for judgment dismissing one or more causes of action asserted against on the grounds that the causes of action are barred by the statute of limitations. The plaintiff understood the defendants' motions as claiming that the actions were time-barred. Pursuant to CPLR 2001, the Court disregarded the movants' use of CPLR 3211 (a) (1) instead of CPLR 3211 (a) (5).

A party seeking dismissal on statute of limitations grounds must make a prima facie showing of when the claim accrued; an attorney affidavit without personal knowledge or supporting documents does not suffice.

JDS Constr. Group LLC v. Copper Servs., LLC · filed 2026-03-03(a)(5)

However, the court erred in dismissing the Article 3-A trust fund diversion and related trust accounting claims on statute of limitations grounds. Respondents did not make a prima facie showing as to the accrual date of the applicable statute of limitations. To the extent respondents provided evidence of this fact, they did so only in an affidavit in support of the motion that was submitted by an attorney who did not have personal knowledge of the relevant facts and that was not supported by any relevant documentary evidence.

Under CPLR 3211(a)(5), a defendant seeking dismissal as time barred must first show that the time to sue expired; the burden then shifts to the plaintiff to show timely commencement.

GRIT BXNG at Home, Inc. v. SweatWorks LLC · filed 2026-03-16(a)(5)

On a motion to dismiss on statute of limitations grounds, under CPLR 3211 (a) (5), “a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to plaintiffs to offer evidentiary facts establishing that the action was timely commenced” (Mandour v Rafalsky, 238 AD3d 637, 637-638 [1st Dept 2025] [internal citations omitted]). ... Here, third-party defendants failed to sustain their burden of establishing prima facie that this cause of action is untimely.

A defendant preserves a statute of limitations defense under CPLR 3211(e) by asserting it in the answer.

Southgate Owners Corp. v. Esposito · filed 2026-03-17(e)

Contrary to plaintiff's assertion, defendant expressly preserved the statute of limitations defense in her answer (CPLR 3211[e]), and in any event, when plaintiff cross-moved for summary judgment, the court was empowered to search the record, and, if appropriate, grant summary relief even in the absence of a cross-motion ( Kalair v Fajerman , 202 AD3d 625, 626 [1st Dept 2022]).

On a motion to dismiss as time-barred, the defendant must first establish that the time to commence the action has expired.

Schwartz v. Abbatine · filed 2026-03-25(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Comito v Z & N Enters. Corp. , 230 AD3d 469, 471). ... Therefore, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(5).

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant initially bears the burden of establishing that the time to sue has expired.

Cinquemani v. Money Source, Inc. · filed 2026-04-08(a)(5)

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, 'the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired'" (Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc., 184 AD3d 803, 804, quoting Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of limitations, the defendant must first establish that the time to commence the action has expired.

Ogundiran v. Spira · filed 2026-06-03(a)(5)

'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired'" ( Kravets v Striano , 229 AD3d 613, 613, quoting HSBC Bank USA, N.A. v Corrales , 224 AD3d 816, 818).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of limitations, the defendant must first establish that the time to commence the action has expired.

Klaus v. Town of Brookhaven · filed 2026-06-10(a)(5)

'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired' ( HSBC Bank USA v Lem , 236 AD3d 762, 763, quoting U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d 1750, 1752).

On a motion to dismiss as untimely under CPLR 3211(a)(5), the defendant must initially establish that the time to commence the action has expired.

Shen v. Ferncliff Cemetery Assn. · filed 2026-06-24(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as untimely, a defendant must establish, prima facie, that the time in which to commence the action has expired ( see Barbetta v Facchini , 236 AD3d 623, 625).

Section 3211(a)(5) does not require a party to move to dismiss on statute of limitations grounds before seeking summary judgment on that defense after issue is joined.

Seven Sixty Travel, Inc. v. American Motorists Insurance · filed 1979-02-20(a)(5)

In opposition the Insurers first argue that Treistman has improperly brought this motion, having raised it in the answer rather than moving pursuant to CPLR 3211 (subd [a], par 5). This argument is without merit.

A complaint may be dismissed on a limitations motion when it conclusively appears that the plaintiff knew facts that should have led her to discover the alleged fraud.

Rattner v. York · filed 1991-06-24(a)(5)

However, a complaint should be dismissed upon a motion where it conclusively appears that the plaintiff has knowledge of facts which should have caused her to inquire and discover the alleged fraud (see, Dombadze v Lignante, 244 NY 1; Azoy v Fowler, 57 AD2d 541).

A factual dispute over whether an action was timely filed requires a hearing before a limitations motion to dismiss can be decided.

Zhinin v. Vicari · filed 2008-04-08(a)(5)

Under the circumstances, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on the issue of when the papers and the filing fee were delivered to the County Clerk and for a new determination of the motion to dismiss thereafter.

Section 3211(e) treats a statute of limitations defense omitted from the answer as waived.

Federal Ins. Co. v. Lakeville Pace Mech. Inc. · filed 2018-03-08(e)

Plaintiff, relying on defendant's waiver of any statute of limitations defense (CPLR 3211[e]), was prejudiced by the loss of the opportunity to interpose a timely breach of contract claim, which it could have done "had the original pleading contained what the [proposed] amended one wants to add" Armstrong v Peat, Marwick, Mitchell & Co. , 150 AD2d 189, 190 [1st Dept 1989]).

On a motion to dismiss a complaint as time-barred, the defendant initially bears the burden of showing that the time to commence the action has expired.

Weinberg Real Estate Affiliates, LLC v. Weinberg · filed 2024-10-02(a)

"A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired" ( Mello v Long Is. Vitreo-Retinal Consultant, P.C. , 172 AD3d 849, 850; see Valdez v M.A. Angeliades, Inc. , 222 AD3d 911, 912).

A dismissal for failure to state a cause of action under subsection (a)(7) does not preclude a later action when the dismissal was not stated to be on the merits.

Aetna Casualty & Surety Co. v. City of New York · filed 1990-04-24(a)(7)

Specifically, since neither the order dismissing the Shore II complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) nor this court’s affirmance thereof stated that the dismissal was "on the merits”, it will not have such a preclusive effect.

A dismissal under § 3211(a)(7) that is not expressly on the merits precludes a later action only if it repeats the same theory of liability or fails to correct the pleading defects.

Garg v. Albert Einstein College of Medicine of Yeshiva University · filed 1990-09-20(a)(7)

Thus, where, as here, a New York state court dismisses an action under N.Y. CPLR § 3211(a)(7) for failure to state a claim and does not state that its decision was on the merits, that judgment will only preclude actions which are brought upon the same theories of liability or which fail to correct the defects of the original pleading.

Section 3211(a)(5) permits dismissal of a re-served complaint when a prior dismissal on the merits precludes it.

Colon v. New York City Health · filed 1990-10-18(a)(5)

Accordingly, the dismissal was on the merits and the IAS court properly dismissed the re-served complaint on the ground that it was nothing more than an attempt by plaintiff to circumvent the court’s original order and judgment.

CPLR 3211(e) does not bar a new action after an earlier complaint was dismissed solely for pleading defects.

Hodge v. Hotel Employees & Restaurant Employees Union Local 100 of the AFL-CIO · filed 2000-02-29(e)

Finally, contrary to defendants’ contention, the instant action is not barred by CPLR 3211 (e) (see, Rapp v Lauer, 200 AD2d 726).

A dismissal for failure to state a cause of action does not bar a later proceeding that corrects the pleading defect or rests on changed allegations.

Shahid v. Rosado · filed 2002-09-18(a)(7)

The decision dated April 5, 1999 (M. Sikowitz, J.), dismissing the prior proceeding on default pursuant to CPLR 3211 (a) (2), (7) and (8), has no res judicata effect with respect to the instant petition.

A dismissal under section 3211(a)(7) for insufficient pleadings does not preclude a new action that corrects the deficiency.

City of New York v. Beretta U.S.A. Corp. · filed 2004-04-12(a)(7)

If the dismissal was based on insufficiency of the pleadings pursuant to New York CPLR 3211(a)(7), a new action that remedies the deficiency will not be precluded.

A dismissal under CPLR 3211(a)(7) ordinarily lacks res judicata effect unless the court expressly states that it is on the merits.

Abreu v. Jamaica Avenue Funding LLC (In re Abreu) · filed 2015-03-27(a)(7)

“[A] dismissal pursuant to N.Y. C.P.L.R. 3211(a)(7), for failure to state a cause of action, is presumptively not on a case’s merits and lacks res judicata effect; indeed a Rule 3211(a)(7) dismissal is only on a cases merits if the rendering court explicitly says so.” ... The State Court did not expressly state that the dismissal of the State Court Complaint was on the merits, as to any of the defendants.... Therefore, under New York law, the State Court’s dismissal is not the merits and lacks res judicata effect.

An order granting a CPLR 3211(a)(7) motion generally is not a determination on the merits, but it can preclude a new complaint that fails to cure the defect identified in the earlier complaint.

Blake v. City of New York · filed 2016-11-30(a)(7)

Although, generally, an order granting a motion pursuant to CPLR 3211 (a) (7) is not a determination on the merits (see Pereira v St. Joseph’s Cemetery, 78 AD3d 1141, 1142 [2010]), such a determination has preclusive effect as to “a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” (175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 590 n 1 [1980]).

A dismissal for failure to state a claim under § 3211(a)(7) is presumed not to be on the merits unless the dismissing court says otherwise.

Mejia v. Wallace · filed 2020-05-30(a)(7)

Under New York law, a dismissal for failure to state a claim under CPLR § 3211(7) is presumptively not a decision on the merits un- less the court so states.

A dismissal on a CPLR 3211 motion does not preclude a renewed claim that cures the defect identified in the dismissal.

Ninth Space LLC v. Goldman · filed 2020-12-29

An order dismissing a claim on a CPLR 3211 motion "will not preclude a new action which meets and overcomes the particular objection" ( De Ronda v Greater Amsterdam School Dist., 91 AD2d 1088, 1089 [3d Dept 1983]). Here, the court dismissed plaintiffs' contract claim in the original complaint on the sole ground that they had failed to support the claim with a signed copy of the contract. Plaintiffs remedied this by producing a signed and notarized copy of the Agreement.

A dismissal under § 3211(a)(7) is presumptively not on the merits unless the court says otherwise or dismisses with prejudice.

Spoleto Corporation v. Ethiopian Airlines Group · filed 2022-02-03(a)(7)

Although Justice Ostrager’s analysis substantively faulted Arena Riparian for failing to allege the element of available damages, a dismissal for failure to state a claim under N.Y. C.P.L.R. § 3211(a)(7) is presumptively not on the merits, unless the dismissing court expressly so states, DDR Constr. Servs., 770 F. Supp. 2d at 647, or states that the dismissal was with prejudice, Gianatasio, 862 F. Supp. 2d at 349. Here, Justice Ostrager stated neither.

A CPLR 3211(a)(7) motion tests whether the alleged facts state a cognizable claim; a dismissal on that basis does not ordinarily decide the merits.

Jones v. Thomas · filed 2022-03-14(a)(7)

A motion to dismiss pursuant to CPLR 3211(a)(7) accepts the facts alleged in the complaint as true, draws all inferences in the plaintiff’s favor, and determines whether the facts alleged comport with a cognizable legal theory. See Mendelovitz v Cohen, 37 A.D.3d 670, 671, 830 N.Y.S.2d 577 (2007). But it does not resolve the issues on the merits.

A dismissal for failure to state a cause of action precludes a new complaint on the same cause of action if the new complaint does not correct the earlier defect.

Ward v. Klein · filed 2022-03-30(a)(7)

A dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action "has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint" ( 175 E. 74th Corp. v Hartford Acc. & Indem. Co. , 51 NY2d 585, 590 n 1; see Furia v Furia , 116 AD2d 694, 695). Here, the dismissal of the complaint in the prior action had preclusive effect in this action, since the plaintiff filed an amended complaint which, apart from the name change, was identical to the deficient complaint filed in the prior action ( cf. Rapp v Lauer , 200 AD2d 726, 728; Furia v Furia , 116 AD2d at 695).

A dismissal for failure to state a claim under CPLR 3211(a)(7) can be a judgment on the merits with res judicata effect.

Spoleto Corp. v. Ethiopian Airlines Grp. · filed 2022-12-12(a)(7)

Indeed, New York courts have repeatedly held that a prior dismissal for failure to state a claim under CPLR 3211(a)(7) constitutes a judgment on the merits. ... Our examination of the record reveals that the state court’s dismissal of Arena Riparian’s claims against Ethiopian was on the merits.

Findings on a CPLR 3211 motion are law of the case only as to pleading sufficiency; they cannot limit discovery or establish facts on summary judgment or at trial.

Sherman v. Zampella · filed 2023-03-21

Finally, although the doctrine of law of the case applies to the motion court's findings of fact, the doctrine applies only to the extent that those findings address the sufficiency of the pleadings and may not be used to limit discovery or to establish facts on summary judgment or at trial ( Friedman v Connecticut Gen. Life Ins. Co. (30 AD3d 349 [1st Dept 2006], affd as mod 9 NY3d 105 [2007]; see also Korff v Corbett , 155 AD3d 405, 410 [1st Dept 2017]).

A dismissal under § 3211(a)(7) for failure to state a claim generally is not a final judgment on the merits for claim preclusion unless the court indicates otherwise.

Unkechauge Indian Nation v. Seggos · filed 2023-06-16(a)(7)

Where a case is dismissed pursuant to CPLR § 3211(a)(7) for failure to state a claim, unless the presiding court indicates otherwise, the case is generally not considered a final judgment on the merits for the purposes of determining claim preclusion.

A dismissal under CPLR § 3211(a)(7) may preclude a later complaint asserting the same claim on the same facts if the later complaint does not cure the original defects.

Kremenchutsky v. Citizens Bank N.A. · filed 2025-04-30(a)(7)

Thus, if the new complaint fails to cure the defects of the original, the dismissal pursuant to CPLR § 3211(a)(7) may be given preclusive effect.

Section 3211 permits a court to decide on a motion to dismiss whether a release was fraudulently induced.

LMM Capital Partners, LLC v. Mill Point Capital, LLC · filed 2024-02-15

First, and contrary to plaintiff's contention, a court can decide, on a CPLR 3211 motion, if a release was fraudulently induced ( see e.g. Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V., 17 NY3d 269, 275 [2011]).

A court may decide a motion under § 3211(a)(7) despite the movant's failure to identify that ground when the motion requests general relief and the opposing party suffers no prejudice.

Henry v. Khan · filed 2024-02-06(a)(7)

Here, as in Tirado , the court bases its decision to adjudicate the motion pursuant CPLR §3211 [a][7] upon the general relief clause contained in the Notice of Motion, and in the absence of prejudice to the Plaintiff, who clearly crafted their opposition papers accordingly.

On a motion to dismiss under CPLR 3211(a)(5), the court takes the plaintiff’s allegations as true and resolves reasonable inferences in the plaintiff’s favor.

DEJOHN, MARY BETH v. SPEECH, LANGUAGE & COMM. · filed 2013-11-08(a)(5)

Taking plaintiff’s “allegations as true and resolv[ing] all inferences which reasonably flow therefrom in [her] favor” (Cron v Hargro Fabrics, 91 NY2d 362, 366), we conclude that the court properly denied the motion.

CPLR 3211 motions do not lend themselves to deciding whether a notice was reasonable.

DKR Soundshore Oasis Holding Fund Ltd. v. Merrill Lynch International · filed 2011-01-06

The reasonableness of notice is not an issue that lends itself to determination on a CPLR 3211 motion (see Zuckerwise v Sorceron Inc., 289 AD2d 114, 115 [2001]).

Section 3211 does not permit rescission and dismissal as a matter of law when the agreement may support a different interpretation of the parties’ intent.

Beudert-Richard v. Richard · filed 2010-01-19

In any event, since the separation agreement may be interpreted to establish the couple’s expression of mutual intent that upon divorce the property would be owned as tenants in common, rescission as a matter of law in the context of a motion pursuant to CPLR 3211 was at least premature.

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

Anand v. Soni · filed 1995-05-08(a)(7)

The Supreme Court correctly denied the defendants’ motion to dismiss the complaint in its entirety since it is well settled that if a motion attacks the entire complaint, the motion must be denied if even one cause of action is sustained (see, Martirano Constr. Corp. v Briar Contr. Corp., 104 AD2d 1028, 1029).

A motion to dismiss an entire complaint for failure to state a cause of action must be denied if at least one cause of action is legally sufficient and the motion does not identify particular causes of action for dismissal.

Long Island Diagnostic Imaging v. Stony Brook Diagnostic Associates · filed 1995-05-08(a)(7)

The Supreme Court properly denied Anand’s motion to dismiss since it is well settled that "a motion to dismiss for failure to state a cause of action will be denied in its entirety where the complaint asserts several causes of action, at least one of which is legally sufficient and where the motion is aimed at the pleading as a whole without particularizing the specific causes of action sought to be dismissed” (Martirano Constr. Corp. v Briar Contr. Corp., 104 AD2d 1028, 1029).

A CPLR 3211 motion can place the sufficiency of a complaint in issue when the plaintiff treats it as an issue, even if the motion papers are inartfully drawn.

Artzt v. Greenburger · filed 1990-05-15

Defendants, in the order on appeal, moved to dismiss the complaint by notice of motion "pursuant to CPLR 3211.” While the motion papers are somewhat inartfully drawn, the grounds for dismissal were that the complaint was time barred and that the prior determination of this court was res judicata as to the sufficiency of the complaint. ... Nevertheless, the motion below placed in issue the sufficiency of the complaint, having been so treated by plaintiff, and we conclude that plaintiff neither states nor possesses any valid cause of action.

CPLR 3211(e) permits a motion to dismiss for failure to state a cause of action at any time, even if the objection was not raised in the answer.

Fratto v. Western Regional Off-Track Betting Corp. · filed 1990-06-22(e)

In addition, dismissal motions based on failure to state a cause of action may be raised at any time pursuant to CPLR 3211 (e), even if such objections are not raised in the answer.

A motion to dismiss a cause of action for failure to state a claim is premature when that cause involves parties who have not yet been served.

Anon Realty Associates, L.P. v. Simmons Stanley Ltd. · filed 1992-03-26(a)(7)

That part of the motion addressed to the second cause of action is denied as premature. That cause of action involves individuals and entities not yet served and, accordingly, the court will not address its sufficiency at this time.

A motion to dismiss a complaint as a whole for failure to state a cause of action must be denied if at least one cause of action is legally sufficient.

Huntsman Chemical Corp. v. Tri/Insul Co. · filed 1992-05-07(a)(7)

In the instant action, defendant’s motion is aimed at plaintiffs’ 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.

A CPLR 3211(a)(7) motion does not support dismissal of a cause of action the motion does not address when no evidence is presented on that claim.

Barrett v. Howland · filed 1994-03-07(a)(7)

However, the Supreme Court improperly dismissed the plaintiffs’ cause of action to recover for damages to their automobile. The defendants’ motions to dismiss pursuant to CPLR 3211 (a) (7) were not directed to this cause of action, and no evidence was presented on the issue.

On a motion to dismiss a defense under CPLR 3211(b), the court treats the defendant’s allegations as true and gives the defendant reasonable inferences from the submitted proof.

Capital Telephone Co. v. Motorola Communications & Electronics, Inc. · filed 1994-10-27(b)

It is well settled that "[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof’ (Grunder v Recckio, 138 AD2d 923).

On a CPLR 3211 motion to dismiss, courts construe the pleading liberally, accept its alleged facts as true, and give plaintiffs every favorable inference when deciding whether it states a cognizable claim.

Franco v. English · filed 1994-12-08

Initially, we note that "[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction * * *. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]” (Leon v Martinez, 84 NY2d 83, 87-88; see, Morone v Morone, 50 NY2d 481, 484; Rovello v Orofino Realty Co., 40 NY2d 633, 634).

On a motion to dismiss under section 3211(a)(7), the court accepts the complaint’s factual allegations as true and gives the plaintiff every favorable inference.

Daly v. City of New York · filed 1995-03-28(a)(7)

Ordinarily, on a motion to dismiss pursuant to CPLR 3211 (a) (7), the court accepts the facts as alleged in the complaint as true and accords the plaintiff the benefit of every possible favorable inference.

Section 3211(e) permits a motion to dismiss for failure to state a cause of action at any time, including during trial, if the opposing party has an adequate opportunity to argue against it.

Herman v. Greenberg · filed 1995-11-28(e)

A motion to dismiss for failure to state a cause of action may be entertained at any time (CPLR 3211 [e]; Quigley v City of Oswego, 71 AD2d 795, lv denied 48 NY2d 607), and a decision thereon need not be reserved until after the proponent of the cause of action presents evidence to the jury, provided an adequate opportunity to argue in opposition to the motion is accorded (see, Wright v Ford Motor Co., Ill AD2d 810).

A motion to dismiss for failure to state a cause of action may be raised at any time, even if the objection was omitted from the answer.

State v. Hollander · filed 1997-12-04(a)(7)

Initially, we note that a motion based upon a failure to state a cause of action under CPLR 3211 (a) (7) may be raised “at any time even if such objection [was] not raised in the answer” (State of New York v Wolowitz, 96 AD2d 47, 54; see, CPLR 3211 [e]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:58, at 79). Upon our review of the record, we conclude that there was no procedural impediment to Supreme Court’s consideration of defendants’ motion to dismiss.

On a CPLR 3211 motion against a complaint, the court accepts the allegations as true and draws reasonable inferences in the pleader’s favor.

Cron v. Hargro Fabrics, Inc. · filed 1998-03-26

On a CPLR 3211 motion made against a complaint, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (see, Sanders v Winship, 57 NY2d 391, 394).

A motion to dismiss for failure to state a cause of action may be made after joinder of issue; the movant need not proceed by summary judgment.

Universal Gasoline Distributing Corp. v. McGas, Inc. · filed 1998-05-11(e)

Contrary to the conclusion of the Supreme Court, that branch of the appellants’ motion which was made pursuant to CPLR 3211 (a) (7) to dismiss the second, fifth, eighth, and ninth causes of action insofar as asserted against them was not untimely, and the appellants were not required to move under CPLR 3212 (see, CPLR 3211 [e]).

A motion challenging the sufficiency of a complaint seeks dismissal under CPLR 3211(a)(7) for failure to state a cause of action, regardless of its label.

Non-Linear Trading Co. v. Braddis Associates, Inc. · filed 1998-06-02(a)(7)

The original complaint, stripped of its equitable trappings, asserts a cause of action for breach of a promise to produce “Partnership Products” and, the recitation of the notice of motion notwithstanding, defendant’s application seeks dismissal for failure to state a cause of action (CPLR 3211 [a] [7]; 104).

A motion to dismiss for failure to state a cause of action does not reach a challenge to the plaintiff’s calculation of damages.

G. H. Dorety Construction, Inc. v. Joseph Francese, Inc. · filed 1998-07-02(a)(7)

Defendants’ challenge to plaintiff’s calculation of damages is not within the purview of its motion to dismiss pursuant to CPLR 3211 (see, Dunn v Commercial Union Ins. Co., 27 AD2d 240, 242-243).

A motion to dismiss under CPLR 3211(a)(7) does not put a cause of action before the court when the movant has not sought its dismissal.

Electronic Data Systems Corp. v. Xerox Corp. · filed 2000-06-06(a)(7)

There was no reason for the IAS Court to address the declaratory judgment cause of action since defendant’s motion to dismiss only sought dismissal of plaintiffs three other causes of action.

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the complaint’s allegations as true and asks whether they fit any cognizable legal theory.

Polonetsky v. Better Homes Depot, Inc. · filed 2000-07-14(a)(7)

The standards for review on a CPLR 3211 (a) (7) motion to dismiss are well settled. The court must accept the allegations of the complaint as true and “determine simply whether the facts alleged fit within any cognizable legal theory.”

A motion to dismiss on a ground specified in subdivision (a)(2), (7), or (10) may be made after the answer is served.

J & J Trading Co. v. Republic National Bank · filed 2000-09-28(e)

Initially, the plaintiff argues that the motion to dismiss must be summarily denied because under CPLR 3211 (e) such an application must be made before service of the answer. This argument is without merit. CPLR 3211 (e) provides that “[a] motion based upon a ground specified in paragraphs two, seven or ten of subdivision (a) may be made at any subsequent time” (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:53, at 73).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true, gives the plaintiff every possible inference, and asks whether the alleged facts fit any cognizable legal theory.

MRI Management Recruiters of Mohawk Valley, Inc. v. Cowan · filed 2000-11-13

It is well settled that, on a motion to dismiss pursuant to CPLR 3211, the facts alleged in the complaint are accepted as true, plaintiff is afforded “the benefit of every possible inference,” and the court must “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88). Upon our review of the complaint, we conclude that the court properly refused to dismiss the complaint for failure to state a cause of action.

On a CPLR 3211 motion to dismiss, courts accept the complaint’s allegations as true and give the plaintiff every favorable inference.

San Juan v. Leach · filed 2000-12-11

The allegations of the complaint, when accepted as true and given the benefit of every favorable inference (see, CPLR 3211), adequately state causes of action based upon Def Jam’s alleged elimination of the plaintiffs position as Leach’s assistant in retaliation for her sexual harassment complaint (see, Quinn v Green Tree Credit Corp., 159 F3d 759, 769).

On a CPLR 3211 motion, the court must accept the complaint’s allegations as true.

Acquista v. New York Life Insurance · filed 2001-07-05

Upon review of a motion made pursuant to CPLR 3211, we are required to accept as true the allegations of the complaint (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Section 3211(b) permits dismissal of a defense that is not stated or has no merit, but unresolved material facts preclude striking it.

Arquette v. State · filed 2001-09-20(b)

A motion to dismiss a defense must be made on the ground that a defense is not stated or that it has no merit (CPLR 3211 [b] ; Winter v Leigh-Mannell, 51 AD2d 1012), and it is error for a court to strike a defense when material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941).

On a motion to dismiss under CPLR 3211, the court assumes the alleged facts are true and asks whether they state a legally cognizable claim without assessing their merits.

P.T. Bank Central Asia v. ABN AMRO Bank N.V. · filed 2003-01-09

The scope of a court’s inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed. ... In ruling on a motion to dismiss, the court is not authorized to assess the merits of the complaint or any of its factual allegations, but only to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action.

On review of a motion to dismiss for failure to state a cause of action, the court accepts the alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit any cognizable legal theory.

MetLife Auto & Home v. Joe Basil Chevrolet, Inc. · filed 2002-12-30(a)(7)

In reviewing the determination of a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts alleged in the complaint and in the submissions in opposition to the motion, accord the plaintiff the benefit of every possible favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414; Edmond v International Bus. Machs. Corp., 91 NY2d 949, 951, rearg denied 92 NY2d 871; Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 609-610; Leon v Martinez, 84 NY2d 83, 87-88).

On a CPLR 3211(a)(1) motion, allegations in the complaint and opposition submissions are accepted as true, liberally construed and given every favorable inference.

Hopkinson v. Redwing Construction Co. · filed 2003-01-16(a)(1)

In making that determination, the allegations of fact set forth in plaintiffs’ complaint and their submissions in opposition to defendant’s motion are accepted as true, liberally construed and given every favorable inference.

On a motion to dismiss for failure to state a cause of action, the court should not search the record on its own to decide an issue the parties have not addressed.

Barry & Sons, Inc. v. Instinct Productions LLC · filed 2004-05-24(a)(7)

Because neither party has addressed the effect paragraph 4 (c) would have, if any, on the merits of Blackground’s declaratory judgment cause of action, and because it is beyond the purview of the court to do so as the court should not, sua sponte, search the record on a motion to dismiss pursuant to CPLR 3211 (a) (7), the court discusses paragraph 4 (c) for the limited purpose of properly interpreting paragraph 4 (e).

A motion under CPLR 3211(a)(7) tests the sufficiency of the pleading, so the court should not search the record on its own.

Barry & Sons, Inc. v. Instinct Prods. LLC · filed 2004-05-24(a)(7)

It is improvident for the court , however, to, sua sponte, search the record on a motion to dismiss pursuant to CPLR 3211 (a) (7) as this motion merely addresses the sufficiency of a pleading and is separate and distinct from a motion for summary judgment pursuant to CPLR 3212 which searches the record and looks to the sufficiency of the underlying evidence ( see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry , 128 AD2d 467, 469 [1st Dept 1987]).

Section 3211(a)(1) requires documentary evidence that conclusively resolves all factual issues, while subsection (a)(7) requires a court considering submitted evidence to decide whether the plaintiff has a cause of action.

Manfro v. McGivney · filed 2004-10-25(a)(1), (a)(7)

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 plaintiffs claim (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Roth v Goldman, 254 AD2d 405 [1998]). ... Where evidence is submitted by the movant in support of a CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether it has stated one (see Columbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327 [2002]).

A motion to dismiss for failure to state a cause of action that addresses each claim individually applies to each claim, even if nominally directed at the whole complaint.

Gamiel v. Curtis & Riess-Curtis, P.C. · filed 2005-03-03(a)(7)

Where a motion to dismiss for failure to state a cause of action particularizes each of the claims in the complaint, even though it is nominally addressed to the complaint as a whole, the court should treat that motion as applying to each individual cause of action alleged (Skillgames, LLC v Brody, 1 AD3d 247, 252 [2003]).

Section 3211 requires a court reviewing a motion to dismiss to view the complaint in the light most favorable to the plaintiff.

Pfeiffer v. Jacobowitz · filed 2006-05-09

Viewing the complaint in the light most favorable to the plaintiff, as we must on a motion to dismiss pursuant to CPLR 3211 (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]), we conclude that the complaint alleges that after the plaintiff alerted the defendants to an opportunity to purchase certain real property, the defendants agreed to purchase the property on behalf of the plaintiff as well as themselves, but misrepresented their intentions and, in doing so, breached a fiduciary obligation to the plaintiff.

Section 3211 requires the court to accept as true the complaint’s factual allegations and any reasonable inferences favoring the plaintiff.

Williamson ex rel. Lipper Convertibles, L.P. v. PricewaterhouseCoopers LLP · filed 2006-06-22

Inasmuch as the motion is based upon CPLR 3211, it is important to remember that the court must accept as true all factual allegations as well as any possible inferences that may be drawn in plaintiffs favor (see Leon v Martinez, 84 NY2d 83 [1994]).

CPLR 3211(a)(7) permits dismissal when a complaint fails to satisfy a required pleading allegation, while CPLR 3211(a)(1) addresses dismissal of causes of action and cannot be used to discharge a mechanic’s lien.

Young's L&M Construction, Inc. v. Kelley · filed 2006-07-17(a)(1), (a)(7)

That statute further provides that, if the plaintiff does not comply with this pleading requirement, a defendant may move for dismissal, pursuant to CPLR 3211 (a) (7). ... Furthermore, CPLR 3211 (a) (1), the statute upon which defendants rely for dismissal of the mechanic’s lien, is addressed to a dismissal of plaintiff s causes of action, not the mechanic’s lien. Thus, that branch of the motion cannot be granted.

Section 3211 requires a court reviewing a motion to dismiss to accept the complaint's factual allegations as true, give the plaintiff every favorable inference, and decide only whether those facts fit a cognizable legal theory.

Bishop v. Maurer · filed 2006-10-24

Generally, on a motion to dismiss brought pursuant to CPLR 3211, the court must “ ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78 [2003], lv denied 100 NY2d 512 [2003], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211(a) permits a party to move on specified grounds for a judgment dismissing one or more causes of action.

Aronov v. Regency Gardens Apartments Corp. · filed 2006-11-08(a)

CFLR 3211 (a) permits a party to move, on certain enumerated grounds, “for judgment dismissing one or more causes of action asserted against him [or her].”

CPLR 3211(a)(7) permits consideration of evidentiary material, but dismissal requires the defendant to show without significant dispute that a material fact alleged in the complaint is not a fact at all.

Quesada v. Global Land, Inc. · filed 2006-12-12(a)(7)

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484; Rovello v Orofino Realty Co., 40 NY2d 633, 634)” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Where evidentiary material is submitted on a CPLR 3211 (a) (7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted (see Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570 [2005]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively resolves all factual issues and disposes of the claim, while section 3211(a)(7) permits dismissal when the complaint, taken with favorable inferences for the plaintiff, fails to state a recognizable cause of action.

Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP · filed 2006-12-19(a)(1) and (a)(7)

In light of these standards, and considering the circumstances of the case and the arguments advanced by the parties, the defendant law firm would be entitled to dismissal pursuant to CPLR 3211 (a) (1) if it could establish either that the letter dated January 25, 2001, conclusively proved that the scope of its representation never encompassed any responsibility with respect to possible excess coverage or, alternatively, that the disclaimer letter of May 14, 2003, conclusively established that the plaintiff was not an insured under the excess policy. To succeed on its motion to dismiss pursuant to CPLR 3211 (a) (7), the defendant would have to establish either that, as a matter of law, it owed the plaintiff no duty to identify and notify potential excess carriers or, alternatively, that any negligence on the defendant’s part in failing to do so, as a matter of law, did not proximately cause the loss of excess coverage.

CPLR 3211 (a) (1) and (7) do not permit factual submissions and arguments that belong in a postanswer motion for summary judgment.

Tucker v. M & T Insurance Agency, Inc. · filed 2006-12-22(a)(1) and (7)

The factual submissions and arguments in support of those parts of defendant’s motion to dismiss under CPLR 3211 (a) (1) and (7) are properly made in a postanswer motion for summary judgment pursuant to CPLR 3212 and not on a preanswer motion to dismiss.

Section 3211(a)(7) requires the court to determine whether the pleading has a cause of action when extrinsic evidence is submitted and the motion is not converted to summary judgment.

IIG Capital LLC v. Archipelago, L.L.C. · filed 2007-01-04(a)(7)

Where the parties submit extrinsic evidence in connection with a CPLR 3211 (a) (7) motion to dismiss the complaint and the court declines to treat the motion as one for summary judgment under CPLR 3211 (c), the appropriate standard of review “ ‘is whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” (Leon v Martinez, 84 NY2d 83, 88 [1994], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Section 3211 allows a court to dismiss a complaint based on the pleadings and documentary evidence when the claim is barred as a matter of law.

Sexter & Warmflash, P.C. v. Margrabe · filed 2007-01-04(a)(1) and (7)

Pertinence is properly determinable on a motion to dismiss addressed to the pleadings and documentary evidence alone ... Because we find that the Margrabes’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) should have been granted on the ground that the action is barred by the judicial proceedings privilege as a matter of law, we need not consider the other issues raised by the parties.

Section 3211 allows a cause of action to survive dismissal when the complaint states a claim, even where disputed evidence is more appropriate for summary judgment.

Fusco v. Fusco · filed 2007-01-09

The complaint therefore states a cause of action for purposes of surviving a motion to dismiss pursuant to CPLR 3211, notwithstanding the affidavit of Marchetti that no such statement was made.

When evidentiary material is considered on a CPLR 3211 motion, the court determines whether the plaintiff has a cause of action rather than merely whether the pleading states one.

Kelley v. Garuda · filed 2007-01-09

However, in evaluating a motion under CPLR 3211, where, as here, evidentiary material has been considered by the court, “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, 84 NY2d 83, 88 [1994]).

Section 3211 permits dismissal based on documentary evidence or failure to state a cause of action, with pleadings given favorable treatment and facts tested for a cognizable legal theory.

Delacruz v. Metropolitan Transit Authority · filed 2007-01-12(a)(1), (a)(7)

When the sufficiency of the pleadings is attacked, the allegations contained in the complaint, as supplemented by the moving papers, “must be given their most favorable intendment” (Arrington v New York Times Co., 55 NY2d 433, 442 [1982], cert denied 459 US 1146 [1983]; Dulberg v Mock, 1 NY2d 54, 56 [1956]). ... In addition to the pleadings the court may also 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]), and the salient issue for determination is ordinarily only “whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

Section 3211 permits denial of a motion to dismiss when the complaint states a cause of action, even after considering supporting records without treating the motion as one for summary judgment.

Port Authority of N.Y. & N.J. v. Barry · filed 2007-03-05

The court also properly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211. The complaint states a cause of action, in that it alleges that defendant used plaintiffs crossing facilities without making payment, and that payment of the tolls and. penalties was demanded, but was not made. In opposition to the motion, plaintiff introduced records through affidavits of employees of plaintiff and the contractor responsible for keeping certain of the records, both of whom had personal knowledge of the policies and procedures involved. These records support the allegations of the complaint and demonstrate the existence of a cause of action. Despite defendant’s efforts to turn the motion into one for summary judgment pursuant to CPLR 3211 (c), the court did not treat it as such. The court properly determined that a cause of action existed (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]).

CPLR 3211(a)(7) allows dismissal for failure to state a cause of action, and CPLR 3211(e) allows leave to replead when the record discloses evidentiary facts justifying it.

Abe's Rooms, Inc. v. Space Hunters, Inc. · filed 2007-03-20(a)(7), (e)

However, since the Supreme Court denied the defendants’ motion in its entirety, it did not reach the plaintiffs’ application pursuant to CPLR 3211 (e) for leave to replead those causes of action. Rather than remit the matter for a determination of the application, in the interest of judicial economy we do so here (see Kaplan v Kaplan, 21 AD3d 993, 995 [2005]). Accordingly, although the complaint failed to set forth the particular words complained of, we conclude that the allegations in the complaint, as supplemented by the plaintiffs’ motion papers in support of their motion for a temporary injunction, disclosed evidentiary facts to justify the granting of their application for leave to re-plead made in opposition to the defendants’ cross motion to dismiss (see Schenkman v New York Coll, of Health Professionals, 29 AD3d 671, 673 [2006]; Imprimis Invs. v Insight Venture Mgt., 300 AD2d 109, 110-111 [2002]; see generally Adika v County of Rockland, 96 AD2d 1025 [1983]).

Section 3211 permits dismissal for failure to state a cause of action when the pleaded facts fit no cognizable legal theory, or when documentary evidence conclusively establishes a defense.

Kupersmith v. Winged Foot Golf Club, Inc. · filed 2007-03-27(a)(1) and (a)(7)

In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference (see McKenzie v Meridian Capital Group, LLC, 35 AD3d 676 [2006]). On a motion to dismiss pursuant to 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 (see Leon v Martinez, supra at 87-88; Williams v Williams, 36 AD3d 693 [2007]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329, 329-330 [2002]).

Section 3211(a)(5) allows a court to dismiss a complaint when the action is barred by the statute of limitations.

Nani v. Gould · filed 2007-04-03(a)(5)

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the complaint is granted.

CPLR 3211(a)(4) permits dismissal when another action is pending, and CPLR 3211(d) requires affidavits identifying essential facts that may exist but cannot yet be stated to justify postponing a decision.

Angel v. Bank of Tokyo-Mitsubishi, Ltd. · filed 2007-04-19(a)(4), (d)

The motion court’s decision to dismiss the third through fifth causes of action on the ground of other action pending (see CPLR 3211 [a] [4]) was a proper exercise of discretion (see Whitney v Whitney, 57 NY2d 731, 732 [1982]). ... Plaintiff failed to submit any affidavits showing “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively resolves the claim, while CPLR 3211(a)(7) permits dismissal when the pleading fails to state a cause of action.

Dutcher v. Shaver · filed 2007-05-03(a)(1) and (a)(7)

In light of this, defendant’s allegation of plaintiffs oral or implied agreement to convey the property to him in order to keep the property in his family is patently insufficient, and plaintiff has established a conclusive basis for dismissing the counterclaim (see Bango v Naughton, 184 AD2d 961, 963 [1992]; see also Thompson v Thompson, 294 AD2d 943, 943 [2002]; cf. Wallach v Hinckley, 12 AD3d 893, 894-895 [2004]). ... Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiff’s motion to dismiss defendant’s counterclaim; motion granted to that extent; and, as so modified, affirmed.

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

McClean v. Vera Wang Bridal House, Ltd. · filed 2007-05-29(a)(1)

The second cause should have been dismissed on the ground of a defense founded upon documentary evidence (CPLR 3211 [a] [1]).

On a motion to dismiss, the court must accept the truth of the plaintiff’s allegations.

Appell v. LAG Corp. · filed 2007-06-21

Accepting the truth of plaintiff’s allegations, as CPLR 3211 requires on a motion to dismiss (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), they advance a potentially viable claim for breach of fiduciary duty (see Birnbaum v Birnbaum, 73 NY2d 461 [1989]; Salm v Feldstein, 20 AD3d 469 [2005]).

Section 3211 sets the standard and burden for deciding a motion to dismiss based on the pleaded facts.

Hispanic AIDS Forum v. Bruno · filed 2007-07-11

On a motion to dismiss, the court must construe the complaint liberally, accept the pleaded facts as true and determine simply whether the facts as alleged fit into any cognizable legal theory.

Section 3211 requires a court to construe the pleading liberally on a motion to dismiss.

Sargent v. New York Daily News, L.P. · filed 2007-07-17(a)(1) and (7)

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

Section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action and requires the court to assess whether the allegations state a cognizable claim at the pleading stage.

Bones v. Prudential Financial, Inc. · filed 2007-08-20(a)(7)

In reviewing a defendant’s motion to dismiss pursuant to CPLR 3211 (a) (7), a court need not look to see if the plaintiff proves the claim in the pleadings; rather it will look only at this stage to see if he states a cognizable cause of action despite how poorly drafted it may be. (See Mandelblatt v Devon Stores, 132 AD2d 162 [1st Dept 1987].) From the four corners of his complaint, Bones pleaded such a claim for promissory estoppel.

Section 3211(a)(4) permits dismissal when another action is pending between the same parties for the same cause, while section 3211(a)(10) addresses dismissal for failure to join a necessary party.

L-3 Communications Corp. v. SafeNet, Inc. · filed 2007-08-30(a)(4), (a)(10)

We conclude that the motion court’s analysis of SafeNet’s motion to dismiss on the ground of another action pending (CPLR 3211 [a] [4]) was flawed. CPLR 3211 (a) (4) permits a party to move for dismissal of a complaint where “there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” ... We find that dismissal pursuant to CPLR 3211 (a) (4) was unwarranted for several reasons.

Section 3211(a)(7) sets the pleading standard for dismissal motions, and section 3211(a)(10) permits dismissal for failure to join a necessary party.

Riback v. Margulis · filed 2007-09-18(a)(7), (a)(10)

Although in assessing a motion to dismiss made pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration (see Morone v Morone, 50 NY2d 481 [1980]; Gershon v Goldberg, 30 AD3d 372, 373 [2006]; Mohan v Hollander, 303 AD2d 473 [2003]). The Surrogate’s Court properly determined that the speculative and conclusory allegations of the complaint failed to state a cause of action pursuant to Debtor and Creditor Law § 273, and failed to state a cause of action to recover damages for misappropriation. Under the circumstances of this case, the Surrogate’s Court also properly concluded that dismissal was warranted based upon the plaintiffs’ failure to join a necessary party to the action (see CPLR 1001 [a]; 3211 [a] [10]; Braun Farms v Goldman, 296 AD2d 472, 473 [2002]; Ranno v Ranno, 2 Misc 2d 940 [1956]).

Section 3211(a)(7) requires courts to accept the complaint's allegations as true and draw reasonable inferences for the plaintiff when deciding whether it states a cause of action.

Khalil v. State · filed 2007-09-21(a)(7)

On a motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 [a] [7]), a court must take all of the complaint’s allegations as true and resolve all inferences that reasonably flow therefrom in favor of the plaintiff.

Section 3211(a)(7) permits dismissal after accepting the complaint's alleged facts as true and giving the plaintiff every possible favorable inference.

Eng v. Sichenzia · filed 2007-09-25(a)(7)

Under the circumstances of this case, accepting the facts alleged in the complaint as true and according the plaintiffs the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the Supreme Court properly granted the motion of the defendant Old Republic National Title Insurance to dismiss the complaint insofar as asserted against it.

Section 3211(a) does not warrant dismissal of a breach of contract cause of action on the stated record.

Chong Min Mun v. Hong · filed 2007-10-25(a)

Plaintiff’s breach of contract action should not have been dismissed under CPLR 3211 (a) (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991]).

CPLR 3211 permits a court to decide a question of law or statutory interpretation on a motion to dismiss a declaratory judgment action when no issue of fact is raised.

Hirschfeld v. Hogan · filed 2007-10-30

Where, as here, no question of fact is raised, but only a question of law or statutory interpretation is presented on a motion to dismiss a declaratory judgment action, the court may render a determination and declare the rights of the parties.

CPLR 3211(a)(1) requires documentary evidence to resolve all factual issues as a matter of law and conclusively dispose of the claim, while CPLR 3211(a)(7) permits dismissal only when the complaint fails to state any recognizable cause of action.

Clement v. Delaney Realty Corp. · filed 2007-11-07(a)(1), (a)(7)

“A motion to dismiss made pursuant to CPLR 3211 (a) (1) will fail unless the documentary evidence that forms the basis of the defense resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff[s’] claim” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37 [2006]). “Moreover, a motion to dismiss made pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff[s], the complaint states in some recognizable form any cause of action known to our law” (id. at 38).

CPLR 3211(a)(5) permits dismissal when a claim is barred by arbitration and award or collateral estoppel.

Wallenstein v. Cohen · filed 2007-11-13(a)(5)

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) is granted.

A court should not reach a defendant’s CPLR 3211 motion to dismiss when the defendant’s default has not been vacated.

Roberts v. Anka · filed 2007-11-20

Since the defendant’s default should not have been vacated, the Supreme Court should not have reached, and thus should not have granted, those branches of the defendant’s cross motion which were to dismiss the complaint pursuant to CPLR 3211.

Section 3211 permits dismissal at the pleading stage on specified grounds and requires the court to accept the alleged facts when deciding the motion.

Serino v. Lipper · filed 2007-11-20(a)(5), (a)(7)

As for whether the continuous representation doctrine applies to extend the accrual date and thereby render the instant malpractice claims timely, we conclude, after accepting, as we must, the facts as alleged by the Lipper parties on this motion to dismiss, that it does not.

On a CPLR 3211 motion, the court accepts the allegations as true and asks whether they plead any cause of action, regardless of the legal theory the plaintiff advances.

Devore v. Pfizer Inc. · filed 2008-11-20

Therefore, the motion court had the authority to determine whether the complaints’ allegations were sufficient to plead that the Michigan statute did not apply because one of its exceptions was applicable, regardless of the legal theory pressed by plaintiffs as grounds to deny the motion.

A motion under § 3211(a)(7) filed 20 days after the note of issue was timely under § 3211(e).

Oakes v. Muka · filed 2008-11-26(e)

As plaintiffs motion, which sought relief under CPLR 3211 (a) (7) and/or 3212, was filed 20 days after the filing of the note of issue, it was timely under both CPLR 3211 (see CPLR 3211 [e]) and the local rule enacted by the Sixth Judicial District providing for summary judgment motions within 60 days of the filing of the note of issue (see CPLR 3212 [a]).

On a motion to dismiss under CPLR 3211, the court assumes an alleged conflict of interest occurred when assessing the sufficiency of a legal malpractice claim.

Kaminsky v. Herrick · filed 2008-12-18(a)(7)

For purposes of a motion under CPLR 3211, it is assumed that there was a conflict of interest amounting to a violation of the Code of Professional Responsibility.

CPLR 3211(a)(1) and (7) do not warrant dismissal when the submitted papers fail to conclusively refute material allegations or establish that the claim is not viable.

Walker v. Kramer · filed 2009-06-02(a)(1), (a)(7)

However, the Supreme Court erred in determining that pursuant to CPLR 3211 (a) (1) and (7) the defendants Lynn Adair Kramer and Kramer & Rabinowitz, LLC (hereinafter together the Kramer defendants), were entitled to dismissal of so much of the complaint as sought to recover damages for legal malpractice against them.

A motion to disqualify opposing counsel is not a proper ground for a CPLR 3211 motion to dismiss.

333 Cherry LLC v. Northern Resorts, Inc. · filed 2009-10-22(a)

Defendant’s motion to disqualify plaintiffs’ counsel was not a proper ground for a CPLR 3211 motion to dismiss and, given that “what constitutes a reasonable excuse for the delay lies within the sound discretion of the [trial] court” (Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705, 706 [2006]), we discern no reason to disturb Supreme Court’s rejection of defendant’s unsupported excuse that it believed its motion to disqualify would extend its time to answer (see Rickert v Chestara, 56 AD3d 941, 942 [2008]).

On a motion to dismiss under CPLR 3211, the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and asks whether the allegations fit a cognizable legal theory.

Ryan, Inc. v. New York State Department of Taxation & Finance · filed 2009-11-12

On a motion to dismiss pursuant to CPLR 3211, the facts as alleged in the complaint are accepted as true, the plaintiff is given the benefit of every possible favorable inference, and the court must determine simply whether the facts alleged fit within any cognizable legal theory.

CPLR 3211 permits a motion to dismiss under subsection (a)(7) after an answer has been served.

Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C. v. Niagara County Sewer District No. 1 · filed 2010-03-19(e)

Indeed, the court granted that part of the motion seeking to deem service of the County’s verified answer timely pursuant to CPLR 3012 (d), and a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) may be made at any time subsequent to serving an answer (see CPLR 3211 [e]). Thus, the court thereafter properly decided that part of the County’s motion to dismiss the complaint in its entirety.

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true, so denial of that motion does not establish that proposed affirmative defenses lack merit as a matter of law.

Zito v. County of Suffolk · filed 2011-02-08

However, whether the proposed affirmative defenses sounding in the statute of limitations and the statute of frauds were without merit as a matter of law could not have been properly raised on the prior appeal, as the issue in the prior appeal concerned the denial of a motion to dismiss, in which “the complaint is . . . afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court . . . determine [s] only whether the facts as alleged fit within any cognizable legal theory” (Thomas v LaSalle Bank N.A., 79 AD3d 1015, 1017 [2010]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

Section 3211’s motion-to-dismiss standard applies in the Court of Claims, where courts must accept the facts alleged in a claim as true.

Warney v. State · filed 2011-03-31

... we presume that the familiar standard governing motions to dismiss in Supreme Court is appropriate here (see CPLR 3211). Therefore, Court of Claims, like other trial courts, should “accept the facts as alleged in the [claim] as true” (Leon v Martinez, 84 NY2d 83, 87 [1994]).

A motion to dismiss for failure to state a cause of action may be made later even if that defense was omitted from the answer.

Rivera v. County of Westchester · filed 2011-04-01(e)

As an initial matter, the court addresses plaintiffs contention, raised during oral argument, that the defense of failure to state a cause of action was not asserted in defendant’s answer and, therefore, that defense presumably has been waived. ... Therefore, contrary to plaintiffs argument, the County’s motion is timely.

CPLR 3211(a)(7) permits dismissal when a complaint fails to state a cognizable claim, while (a)(1) requires documentary evidence to conclusively dispose of the claim.

Guayara v. Harry I. Katz, P.C. · filed 2011-04-05(a)(1), (a)(7)

Thus, the Supreme Court properly denied those branches of the Katz defendants’ and Meruelo’s separate motions which were to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). Moreover, as the documents submitted by the Katz defendants do not conclusively dispose of the plaintiffs claims against them, the Supreme Court properly denied that branch of the Katz defendants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1).

CPLR 3211(e) permits a motion to dismiss for failure to state a cause of action at any time.

Carpenter v. Plattsburgh Wholesale Homes, Inc. · filed 2011-04-07(e)

In fact, defendants’ motion was based on plaintiffs’ failure to state a cause of action in their complaint and can be made at any time (see CPLR 3211 [e]).

On a motion to dismiss for failure to state a cause of action, the court may not make findings of fact.

Garcia v. Rhea · filed 2011-06-16(a)(7)

The court erred in making findings of fact in granting respondents’ motion to dismiss the petition for failure to state a cause of action (CPLR 3211 [a] [7]).

CPLR 3211(e) permits a motion to dismiss for failure to state a cause of action at any subsequent time or in a later pleading, if one is permitted.

Stolarski v. Family Services of Westchester, Inc. · filed 2011-09-21(e)

Contrary to plaintiffs’ contentions, CPLR 3211 (e) provides that a motion to dismiss pursuant to CPLR 3211 (a) (7), failure to state a cause of action, “may be made at any subsequent time or in a later pleading, if one is permitted.” Therefore, FSW’s motion is properly made.

A delayed motion to dismiss under section 3211(a)(7) does not itself excuse a defendant’s default in answering.

Borrie v. County of Suffolk · filed 2011-10-18(e)

The County failed to proffer a reasonable excuse for its default in answering or for its four-month delay in making an untimely motion pursuant to CPLR 3211 (a) (7) (see CPLR 320 [a]; 3211 [e]; Bennett v Hucke, 64 AD3d 529, 530 [2009]).

A defendant may timely move under CPLR 3211(e) to dismiss a complaint on the ground that the action is time-barred.

Reilly v. Garden City Union Free School District · filed 2011-11-29(e)

Contrary to the plaintiffs’ contention, the defendant timely moved to dismiss the complaint, inter alia, on the ground that the action was time-barred (see CPLR 3211 [e]; Matter of Abramov v Board of Assessors, Town of Hurley, 257 AD2d 958, 960 [1999]; cf. Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Lipman v Vebeliunas, 39 AD3d 488, 490 [2007]; Fade v Pugliani/Fade, 8 AD3d 612, 614 [2004]).

Failure to establish an element of one cause of action does not justify dismissing an entire complaint that contains other properly pleaded causes of action.

Commissioners of State Insurance Fund v. Weissman · filed 2011-12-01(a)(1)

It is not clear, from the motion court’s decision, how the failure of the Commissioners to satisfy one element of one cause of action serves to bar the entire complaint, with its admittedly properly pleaded causes of action under Debtor and Creditor Law §§ 273, 274 and 276-a.

Section 3211(e) permits a motion to dismiss for failure to state a cause of action before or after an answer is served.

Anonymous B. v. Anonymous R. · filed 2012-09-14(e)

A motion to dismiss a complaint for failure to state a cause of action may be made either before or after the answer has been served. (CPLR 3211 [e].) Thus, to place the question of the sufficiency of the plaintiffs cause of action before the court, defendant was not required to serve any answer at all.

A court may reach the merits of a petition presented on a CPLR 3211 motion to dismiss when the dispositive facts are undisputed and the parties’ merits arguments are fully in the record.

Rizvi v. New York College of Osteopathic Medicine of New York Institute of Technology · filed 2012-09-19(a)(1), (7)

We initially note that NYCOM’s motion, although denominated as one pursuant to CPLR 3211 (a) (1) and (7) and 7804 (f), presented extensive factual material and arguments addressed to the merits of the petition. Thus, under the particular circumstances of the case, where the dispositive facts were undisputed and the arguments of the parties with respect to the merits of the proceeding were fully set forth in the record before the Supreme Court, it is appropriate that we reach the merits of the petition ... notwithstanding the procedural posture in which this matter reaches us (cf. Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8 NY3d 1001 [2007]).

Under CPLR 3211, a complaint should not be dismissed based on a contract interpretation when the agreement reasonably supports the plaintiff’s reading.

Partners v. Superior Well Services, Inc. · filed 2012-10-25

Superior’s theory is plausible, but so is plaintiffs’ assertion that Nabors should not be excluded from the “transaction” analysis. Consequently, the Appellate Division erred when it adopted Superior’s view in the context of a CPLR 3211 motion to dismiss.

A motion under section 3211(a) may be made any time before service of a responsive pleading is required.

In re the Estate of Wolf · filed 2012-11-30(a)

A motion pursuant to CPLR 3211 (a) may be made any time before the service of a responsive pleading is required. ... Jurisdiction appears to have been completed in this matter on September 27, 2012 after the petitioner made the current motion. Therefore, the current motion was timely made.

An ambiguous contract presents a question of fact that cannot be resolved on a CPLR 3211 motion to dismiss.

Schindler Elevator Corp. v. 475 Park Avenue So. Co. · filed 2013-03-12

“Where, as here, the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment” (Pepco Constr. of N.Y., Inc. v CNA Ins. Co., 15 AD3d 464, 465 [2005]) or a motion to dismiss pursuant to CPLR 3211 (see Telerep, LLC v U.S. Intl. Media, LLC, 74 AD3d 401, 402 [2010]).

On a CPLR 3211(a) motion, dismissal on a ground the parties did not raise or litigate prejudices the plaintiff.

Taylor v. Curry · filed 2013-06-19(a)

The plaintiff was prejudiced when the Supreme Court directed the dismissal of the complaint on a ground that was not litigated or raised by the parties (see Greene v Davidson, 210 AD2d 108, 109 [1994]; Matter of Dental Socy. of State of N.Y. v Carey, 92 AD2d 263, 264 [1983], affd 61 NY2d 330 [1984]; see also Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1152 [2011]; cf. Tirado v Miller, 75 AD3d 153, 154 [2010]; Schrank v Lederman, 52 AD3d 494, 495 [2008]).