N.Y. C.P.L.R. § 3211

CPLR 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense as a matter of law, while CPLR 3211(a)(7) requires accepting pleaded facts as true and determining whether they fit a cognizable legal theory.

Mr. San, LLC v. Zucker & Kwestel, LLP · filed 2013-12-18(a)(1) and (a)(7)

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]). In deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), 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” (Leon v Martinez, 84 NY2d at 87-88).

Section 3211(a)(7) permits dismissal only when the allegations completely fail to state a claim, and section 3211(a)(5) permits dismissal when the claim is barred by the statute of limitations, collateral estoppel, or res judicata.

Clark v. Metropolitan Transportation Authority · filed 2013-12-20(a)(5), (a)(7)

Upon respondents’ motion to dismiss the amended petition pursuant to CPLR 3211 (a), the court must accept petitioners’ allegations as true, liberally construe them, and draw all reasonable inferences in their favor. ... The court may dismiss a claim based on CPLR 3211 (a) (7) only if the allegations completely fail to state a claim. ... Dismissal of a claim is warranted under CPLR 3211 (a) (5) when respondents establish that the claim is barred by the statute of limitations, collateral estoppel, or res judicata.

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

Bank of America, N.A. v. Rausher · filed 2014-01-22

As to the defendant’s request to dismiss the complaint, when reviewing a motion to dismiss pursuant to CPLR 3211, a court must liberally construe the pleadings in plaintiffs favor, accept the facts alleged as true, and determine whether the facts alleged fit within any cognizable theory (see Ozdemir v Caithness Corp., 285 AD2d 961, 963 [3d Dept 2001]).

Section 3211(e) requires a motion to dismiss before the responsive pleading is due; the court may entertain the motion after permitting a late answer.

Williams v. MTA Bus Co. · filed 2014-06-23(e)

Turning to the other branch of the MTA Bus Company’s motion, which seeks to dismiss the action as against it as time-barred, the court notes that this branch of the motion would not be entertained had the court not permitted MTA Bus Company’s late answer. “CPLR 3211 (e) requires that a motion to dismiss a cause of action under CPLR 3211(a) be made before service of the responsive pleading ‘is required.’ ” (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:52.)

On a motion to dismiss for failure to state a cause of action, the court accepts the complaint’s factual allegations as true, construes it in the plaintiffs’ favor, and gives them all reasonable inferences.

Miller v. Walters · filed 2014-10-09(a)(7)

On a motion to dismiss brought pursuant to CPLR 3211 (a) (7), all factual allegations must be accepted as truthful, the complaint must be construed in a light most favorable to the plaintiffs and the plaintiffs must be given the benefit of all reasonable inferences.

A motion to dismiss for failure to state a cause of action may be made at any time.

Toppin v. Town of Hempstead · filed 2014-10-15(a)(7)

Unlike a motion for summary judgment, a motion to dismiss for failure to state a cause of action may be made at any time (see Stolarski v Family Servs. of Westchester, Inc., 110 AD3d 980, 982 [2013]).

In the circumstances presented, CPLR 3211(a)(7) did not permit the court to consider the defendant’s affidavits and deposition testimony when deciding whether the complaint stated a cause of action.

Lee v. Dow Jones & Co., Inc. · filed 2014-10-23(a)(7)

In the circumstances presented, the court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211 (a) (7) motion to dismiss the complaint.

Section 3211 limits review of a motion under (a)(1) or (a)(7) to whether the complaint states a cause of action, with documentary evidence also considered under (a)(1).

Greystone Funding Corp. v. Kutner · filed 2014-10-28(a)(1), (a)(7)

Under CPLR 3211 (a) (1) and (a) (7) the court is limited to examining the complaint (and, under [a] [1], the proffered documentary evidence) to determine whether the complaint states a cause of action (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

A CPLR 3211 motion is not required to dismiss a petition in an article 78 special proceeding.

Malcolm v. New York State Department of Labor · filed 2014-11-14

Contrary to petitioner’s contention, respondents were not required to move pursuant to CPLR 3211 to dismiss the petition.

On a CPLR 3211 motion to dismiss breach of contract counterclaims for lack of standing, the counterclaims are liberally construed; dismissal is unwarranted if they do not conclusively show that the claimant was not a party to the contracts.

Bullock v. Alhadeff · filed 2015-05-07

On this CPLR 3211 motion, the court correctly concluded that, liberally construed, the counterclaims for breach of contract do not demonstrate conclusively that defendant was not a party to the contracts at issue and therefore has no standing to sue on them.

A CPLR 3211 motion does not require an affidavit from someone with personal knowledge of the facts.

Mitchell v. New York Univ. ("NYU") · filed 2015-06-16

Contrary to plaintiff’s contention, a motion made pursuant to CPLR 3211 does not need to be supported by an affidavit from someone with personal knowledge of the facts (see Town New Dev. Sales & Mktg. LLC v Price, 127 AD3d 549 [1st Dept 2015]).

A court may reconsider a CPLR 3211 motion when it previously denied the motion with leave to renew after discovery.

First Franklin Financial Corp. v. Norton · filed 2015-10-09

Contrary to plaintiff’s further contention, the court properly reconsidered defendant’s CPLR 3211 motion to dismiss, having expressly denied the earlier motion with leave to renew after the completion of discovery.

On a CPLR 3211 motion to dismiss, the court evaluates the plaintiff’s claims within the four corners of the pleading.

Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit & Capital, Inc. · filed 2015-10-13

It is axiomatic that, on a motion brought pursuant to CPLR 3211, our analysis of a plaintiff’s claims is limited to the four corners of the pleading.

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

People v. Sprint Nextel Corp. · filed 2015-10-20

On a CPLR 3211 motion to dismiss, the Court accepts facts as alleged in the complaint as true, accords the plaintiff the benefit of every possible favorable inference, and determines whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

CPLR 3211(a) dismissal is improper when factual issues bearing on the asserted defense cannot be resolved on the motion record.

Fixler v. Reisman · filed 2015-11-18(a)

As these factual issues cannot be resolved on this record, the defendant’s motion for relief pursuant to CPLR 3211 was properly denied.

Under CPLR 3211(a)(1) and (7), dismissal is unwarranted when documentary evidence does not utterly refute the allegations and the complaint states a cause of action.

Bayview Loan Servicing, LLC v. White · filed 2015-12-09(a)(1) and (7)

Accordingly, the documentary evidence does not utterly refute the plaintiff’s factual allegations with respect to the first cause of action, and the first cause of action sufficiently states a cause of action for a judgment declaring that the plaintiff is not bound by the judgment in the partition action, that Park holds a 50% interest in the property, and that the plaintiff’s mortgage encumbers Park’s interest.

A defendant may move under CPLR 3211(a)(7) for failure to state a cause of action before or after answering.

24 Franklin Ave. R.E. Corp. v. Cannella · filed 2016-05-04(a)(7)

Contrary to the plaintiffs’ contention, the defendants’ motion was not procedurally improper, as a defendant may properly move to dismiss a complaint pursuant to CPLR 3211 (a) (7) in either a pre-answer motion or in a post-answer motion (see CPLR 3211 [e]; Butler v Catinella, 58 AD3d 145, 151 [2008]).

A CPLR 3211(a) motion to dismiss is untimely when defendants have defaulted by failing to answer or appear on time and have not requested an extension.

Benjamin v. City of New York · filed 2016-06-15(e)

Inasmuch as the moving defendants were in default for failing to timely answer the complaint or appear in this action, and no extension of time was requested, that branch of their motion to dismiss the complaint pursuant to CPLR 3211(a) was untimely and should not have been considered ( see CPLR 3211[e]; Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn , 75 AD3d 624 [2010]).

A postanswer motion to dismiss under CPLR 3211(a)(7) is not untimely.

Mintz v. Rosenberg, Minc, Falkoff & Wolff, LLP · filed 2016-09-30(e)

Defendant's postanswer CPLR 3211(a)(7) motion to dismiss was not untimely ( see CPLR 3211[e]).

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

WELLS, MARK D. v. THE HURLBURT ROAD COMPANY, LLC · filed 2016-12-23(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every favorable inference, and determine only whether the facts alleged fit within a cognizable ... legal theory (see Leon v Martinez, 84 NY2d 83, 87-88).

CPLR 3211(e) makes a post-answer motion to dismiss untimely; the court may consider the application as a motion for summary judgment.

Bank of New York Mellon v. Davis · filed 2017-03-31(e)

Although the defendants have denominated their cross motion as a motion to dismiss pursuant to CPLR 3211 (a), the service of an answer renders the motion as untimely (CPLR 3211 [e]) and therefore defendants’ application is considered as one for summary judgment.

Section 3211 requires the court on a motion to dismiss to accept the plaintiff's allegations as true and draw all reasonable inferences in the plaintiff's favor when deciding whether the complaint sufficiently states a claim.

Macquarie Capital (USA) Inc. v. Morrison & Foerster LLP · filed 2018-01-09

Accepting plaintiff client's allegations as true and drawing all reasonable inferences in its favor ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), a legal malpractice claim was sufficiently alleged ( see Fielding v Kupferman , 65 AD3d 437, 439 [1st Dept 2009]).

CPLR 3211(a)(5) places the initial burden on a defendant asserting a statute of limitations bar to show prima facie that the filing period expired, then shifts the burden to the plaintiff to show tolling, inapplicability, or timely commencement.

Krog Corp. v. Vanner Group, Inc. · filed 2018-02-08(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" ( Leace v Kohlroser , 151 AD3d 707, 708 [2017] [internal quotation marks and citations omitted]; see State of N.Y. Workers' Compensation Bd. v Wang , 147 AD3d 104, 110 [2017]; Northeastern Indus. Park, Inc. v Hoosick Val. Contrs., Inc. , 106 AD3d 1182, 1183 [2013]). If the defendant meets this burden, "[t]he burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendant" ( State of N.Y. Workers' Compensation Bd. v Wang , 147 AD3d at 110 [internal quotation marks and citations omitted]; see Elia v Perla , 150 AD3d 962, 964 [2017]).

Section 3211 sets the standards and permitted evidentiary submissions for deciding a motion to dismiss.

Tauro v. Gait · filed 2018-02-09

" In determining a CPLR 3211 motion, . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one . . . The court may also consider affidavits and other evidentiary material to establish conclusively that plaintiff has no cause of action . . . Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true' " ( Gerrish v State Univ. of N.Y. at Buffalo , 129 AD3d 1611, 1612 [4th Dept 2015]).

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

Chu v. Klatskin · filed 2018-02-13(a)(1) and (7)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered November 18, 2016, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, without costs. Documentary evidence conclusively refutes plaintiffs' claim that, as the owners of the only units on the 11th floor of the condominium building, they have exclusive rights to the 11th-floor portion of the elevator shaft that accommodated the decommissioned and ultimately removed freight elevator adjacent to the wall of their joined residential units.

Section 3211 sets the standards for deciding a motion to dismiss, including liberal construction and favorable inferences, subject to dismissal based on documentary evidence or incredible allegations.

Vestal v. Pontillo · filed 2018-02-22(a)(1), (a)(7)

"On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference" ( Simkin v Blank , 19 NY3d 46, 52 [2012] [citation omitted]; see Graven v Children's Home R.T.F., Inc. , 152 AD3d 1152, 1153 [2017]). ... The liberal construction and favorable inferences to which a plaintiff is entitled will nevertheless fail to save claims that are conclusively refuted by documentary evidence ( see CPLR 3211 [a] [1]) or based on indisputably incredible factual allegations ( see CPLR 3211 [a] [7]; Simkin v Blank , 19 NY3d at 52; 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 152 [2002]; Graven v Children's Home R.T.F., Inc. , 152 AD3d at 1153).

Section 3211(c) allows conversion of a section 3211(a) motion to summary judgment only after adequate notice, while section 3211(a)(7) limits review to whether the complaint states a cause of action, accepting alleged facts as true.

Pesce v. Leimsider · filed 2018-03-02(a)(7), (c)

CPLR 3211 (c) permits a court, in its discretion, to treat a CPLR 3211 (a) motion to dismiss as a motion for summary judgment "after adequate notice to the parties." ... Upon a motion to dismiss pursuant to CPLR 3211 (a) (7), a court is limited to examining the complaint to determine whether it states a cause of action, accepting facts alleged as true and interpreting them in the light most favorable to the plaintiff ( see Miglino v Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342 , 351 [2013]; Friedman v New York Life Ins. & Annuity Corp. , 143 AD3d 939 [2016]).

CPLR 3211(a)(7) permits dismissal when the plaintiff has no cause of action, while CPLR 3211(a)(1) permits dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claims.

Murnane Bldg. Contrs., LLC v. Cameron Hill Constr., LLC · filed 2018-03-23(a)(1), (a)(7)

It is well settled that, in the context of a motion to dismiss the complaint, we must "accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]). A motion pursuant to CPLR 3211 (a) (7) will be granted if the plaintiff does not have a cause of action ( see id. at 88), and a motion pursuant to CPLR 3211 (a) (1) will be granted if "the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]" ( Baumann Realtors, Inc. v First Columbia Century-30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014] [internal quotation marks omitted]).

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law, while CPLR 3211(a)(7) requires accepting alleged facts as true and determining whether they fit any cognizable legal theory.

Hutton Group, Inc. v. Cameo Owners Corp. · filed 2018-04-04(a)(1) and (a)(7)

The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint based upon documentary evidence. "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88). ... Further, the Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. "On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shah v Exxis, Inc., 138 AD3d 970, 971; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).

CPLR 3211(a)(1) permits dismissal based on documentary evidence, and CPLR 3211(a)(7) permits dismissal for failure to state a claim.

Matter of Pettus v. Board of Directors · filed 2018-04-19(a)(1) and (7)

The Supreme Court likewise properly dismissed the petition pursuant to CPLR 3211(a)(1) and (7), based on documentary evidence and for failure to state a claim, as the record establishes that the co-op acted pursuant to a long-standing policy by withholding a garage key from petitioners, and its determination was protected by the business judgment rule ( see 40 W. 67th St. v Pullman , 100 NY2d 147, 155 [2003]; DeSoignies v Cornasesk House Tenants' Corp. , 21 AD3d 715, 718 [1st Dept 2005]).

Section 3211 requires accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor when deciding a motion to dismiss.

Borisovski v. Metropolitan Transp. Auth. · filed 2018-04-23

Accepting plaintiff's allegations as true and drawing all reasonable inferences in his favor, as we must on a motion to dismiss pursuant to CPLR 3211 ( see Leon v Martinez , 84 NY2d 83, 87—88 [1994]), plaintiff failed to state a cause of action pursuant to 42 USC § 1983, arising from an MTA police officer's order directing him to leave a certain Staten Island train station.

A CPLR 3211 (a) (7) motion tests whether the alleged facts, accepted as true, fit a cognizable legal theory; a respondent seeking a decision on the merits of a special proceeding should serve a responsive pleading.

People ex rel. Figueroa v. Keyser · filed 2021-04-01(a)(7)

We note that, if respondent intends to address the merits of a special proceeding rather than the sufficiency of the pleadings, respondent should serve a responsive pleading, here a return pursuant to CPLR 7008, rather than making a motion pursuant to CPLR 3211 (a) (7), which properly addresses "only whether the facts as alleged [and accepted as true] fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Matter of 54 Marion Ave., LLC v City of Saratoga Springs , 162 AD3d 1341, 1342 [2018]; Matter of Hull-Hazard, Inc. v Roberts , 129 AD2d 348, 350 [1987], affd 72 NY2d 900 [1988]; cf. CPLR 404).

A motion to dismiss an infant plaintiff’s claims does not authorize dismissal of the entire complaint when the movant did not seek that relief.

Veloz v. Jiddou · filed 2023-01-24

The court should not have dismissed the complaint in its entirety, as defendants sought only an order of disqualification against plaintiffs' counsel, and dismissal of the infant plaintiff's claims based on incapacity to sue ( see Tirado v Miller , 75 AD3d 153, 158 [2d Dept 2010]; see also Hyman v Able & Ready Appliance Repair Corp. , 193 AD3d 509, 510 [1st Dept 2021]).

CPLR 3211 dismissal is inappropriate when conflicting expert opinions create an issue of fact.

ROAM Capital, Inc. v. Asia Alternatives Mgt., LLC · filed 2023-04-27

As for the sixth (the termination of plaintiff's contract with a U.S. company), the conflict between the parties' experts creates an issue of fact, making the claim inappropriate for CPLR 3211 dismissal ( see generally Read v Lehigh Val. R.R. Co., 284 NY 435, 444 [1940]).

CPLR 3211 motions test the sufficiency of the complaint and do not permit fact findings.

47 E. 34th St. (NY) L.P. v. BridgeStreet Worldwide, Inc. · filed 2023-09-21

In any event, it is improper to make fact findings in connection with a motion to dismiss pursuant to CPLR 3211, which only challenges the sufficiency of the complaint ( see Wiener v Lazard Freres & Co ., 241 AD2d 114, 120 [1st Dept 1998]; Lavin v Kaufman, Greenhut, Lebowitz & Forman , 226 AD2d 107, 108 [1st Dept 1996]).

On a motion to dismiss for failure to state a cause of action, the court may not search the record or decide the merits of the moving party's defenses.

Brown v. University of Rochester · filed 2024-02-29(a)(7)

In fact, on a motion to dismiss pursuant to CPLR 3211 (a) (7), a court may not search the record or address the merits of whether the moving party has defenses ( see Unadilla Silo Co. v Ernst & Young , 234 AD2d 754, 754 [3d Dept 1996]).

CPLR 3211 limits review of a motion to dismiss to whether the pleaded facts support a cognizable claim.

Lara v. Tutor Perini Corp. · filed 2025-01-07

The Court will thereby limit its analysis to CPLR § 3211 and consider only whether the Third-Party Plaintiff properly pled its claims against Third-Party Defendant.

CPLR 3211(a) permits a motion to dismiss a cause of action, but does not provide a way to dismiss a cross-motion.

Slice Wireless Servs., LLC v. Yakubov · filed 2025-08-08(a)

A motion to dismiss is utilized to seek summary dismissal of a cause of action (CPLR 3211 [a]). A motion to dismiss is not a proper device for responding to a cross-motion.

On a motion to dismiss for failure to state a cause of action, the court accepts the petition’s allegations as true and leaves factual disputes for the trier of fact.

Matter of Howansky · filed 2025-12-09(a)(7)

The issues surrounding conflict and hostility are to be decided by the trier of fact and the same may not be inquired into on a CPLR §3211 motion.

A motion seeking relief only under CPLR 3211(a)(5) does not present a separate argument that the complaint fails to state a cause of action.

Kronos, Inc. v. AVX Corp. · filed 1993-04-01(a)(5)

Because the motion sought relief only under CPLR 3211 (a) (5), we do not address the arguments in defendant’s brief that the amended complaint fails to state a cause of action.

A CPLR 3211(a)(7) motion to dismiss does not put the merits of another part of the complaint before the appellate court when the plaintiff has not moved for summary judgment.

Georgia Properties, Inc. v. Dalsimer · filed 2007-04-17(a)(7)

Since defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), and plaintiff did not move for summary judgment, the merits of plaintiffs complaint with regards to ... apartment 19A are not before us on this appeal.

A motion concerning an answered removal petition, supported and opposed by affidavits, is treated as a summary judgment motion rather than a motion for judgment on the pleadings under CPLR 3211(a).

In re the Estate of Coons · filed 1990-05-17(a)

Accordingly, it is necessary to determine whether respondent’s motion is one for judgment on the pleadings (see, CPLR 3211 [a]) or summary judgment (see, CPLR 3212; see, e.g., Matter of Pascal, 285 App Div 456, 457, revd on other grounds 309 NY 108). Since respondent submitted an answer and accompanying affidavits and petitioner submitted responding affidavits, we consider respondent’s motion as one seeking summary judgment (cf., Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939, 940).

Section 3211(c) does not permit summary judgment on a pre-answer motion to dismiss when triable issues of fact remain.

Zwirn v. Goodman · filed 1994-07-05(c)

On this record we conclude that there exist triable issues of fact which preclude the granting of summary judgment on the first and second causes of action at this juncture.

On a motion to dismiss, the court may enter judgment on the merits when the pleadings raise no factual issue or the facts are conceded.

Owner-Operator Independent Drivers Ass'n v. Urbach · filed 1999-11-10(a)(7)

To the contrary, if no issue of fact is raised by the pleadings, or if the facts are conceded, a proper case is presented for judgment on the merits on defendant’s motion to dismiss the complaint.

On a pre-answer motion to dismiss, CPLR 3211 requires the court to construe the pleadings liberally, accept the alleged facts as true, and give the petitioner every possible inference.

Bianco v. Sciaulino · filed 2009-11-09(a)(7)

Moreover, in the context of this pre-answer motion to dismiss (CPLR 3211), whereby the court should afford the pleadings a liberal construction, accept as true the facts alleged therein and accord the petitioner the benefit of every possible inference (Frank v DaimlerChrysler Corp., 292 AD2d 118 [1st Dept 2002]), application of the respondent’s argument would preclude an owner who wields a good faith intention of recovering possession of a rent-stabilized apartment from exercising his/her statutorily protected right.

A motion to dismiss under CPLR 3211 does not require the movant to annex all pleadings.

Glasheen v. Valera · filed 2014-04-10

Plaintiffs argument that defendants’ motion should not have been considered because defendants failed to annex all of the pleadings lacks merit. This requirement does not apply to a motion to dismiss (see CPLR 3211), and, in any event, can be excused by the motion court (see CPLR 2001).

A court may treat a CPLR 3211(a)(7) motion in a declaratory judgment action as a motion for a declaration in the defendant’s favor when no factual questions remain.

Guthart v. Nassau County · filed 2017-01-19(a)(7)

The motion by defendants County of Nassau and the Nassau County Traffic and Parking Violations Agency (jointly County) for an order pursuant to CPLR 3211 (a) (1), (5) and (7) dismissing the complaint is granted pursuant to CPLR 3211 (a) (7), which the court treats as one for a declaration in defendants’ favor prior to answer and declares that the driver-responsibility fee as it relates to the red-light camera program is a proper exercise of Nassau County’s power to charge and collect administrative fees.

On a CPLR 3211 motion to dismiss, pleadings are liberally construed and plaintiffs receive the benefit of every favorable inference.

Stanger v. Shoprite of Monroe, NY · filed 2020-02-04

At this stage of the litigation, in which discovery has not yet taken place, Brixmor Monroe's argument that plaintiffs' submissions do not establish that it is united in interest with Brixmor is unavailing, since on a motion to dismiss, the pleadings are to be liberally construed, and plaintiffs are entitled to the benefit of every favorable inference ( see CPLR 3211; Goshen v Mutual Life Ins. Co. of N.Y. , 98 [*2]NY2d 314, 326 [2002]).

On a motion to dismiss under CPLR 3211(a)(7), a court may reach the merits of a properly pleaded declaratory judgment claim when the controversy presents no factual question.

Matter of A. Colarusso & Son, Inc. v. City of Hudson Planning Bd. · filed 2023-06-22(a)(7)

"[O]n a motion to dismiss pursuant to CPLR 3211 (a) (7), courts may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented by the controversy" ( Metro Enters. Corp. v New York State Dept. of Taxation & Fin. , 171 AD3d 1377, 1378-1379 [3d Dept 2019] [internal quotation marks, ellipsis and citations omitted]). That said, contrary to respondent's assertion, Supreme Court was not procedurally barred from awarding relief on petitioners' fourth cause of action.

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

JMRNNY Doe v. Opus Dei · filed 2024-06-10(a)(8)

"On 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" (see Leon v. Martinez, 84 NY2d 83 [1994]). ... Affording Plaintiff the benefit of every favorable inference, it is evident that dismissal at this juncture would be inappropriate. The pleading must be liberally construed, and based on this standard, the court finds that Plaintiff has alleged facts that align with a cognizable legal theory.

CPLR 3211 requires courts reviewing a motion to dismiss to accept the alleged facts as true, grant favorable inferences, and decide whether they fit a cognizable legal theory.

Matter of First United Methodist Church in Flushing v. Assessor, Town of Callicoon · filed 2024-08-08

When reviewing a motion to dismiss pursuant to CPLR 3211, we "accept the facts alleged in the [petition] as true and accord the nonmoving party the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Singe v Bates Troy, Inc. , 206 AD3d 1528, 1530 [internal quotation marks and citations omitted] [3d Dept 2022]; see Cavosie v Hussain , 215 AD3d 1080, 1081 [3d Dept 2023]).

A court may treat a CPLR 3211(a) motion to dismiss a declaratory judgment claim as a motion for judgment in the defendant's favor when no factual questions remain and the plaintiff is not entitled to the requested declaration as a matter of law.

Matter of Town of Riverhead v. County of Suffolk · filed 2025-04-16(a)

Since no questions of fact were presented by the second cause of action, seeking a judgment declaring that, pursuant to Suffolk County Charter former § C12-2(D), the County is required to pay the Riverhead Sewer District sums to stabilize its sewer rate for 2016 and 2017, and the County demonstrated that the petitioners were not entitled to that declaratory relief as a matter of law, the Supreme Court should have deemed that branch of the County's motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action for failure to state a cause of action to be for a declaratory judgment in the County's favor, and thereupon granted it ( see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ. , 20 NY2d 317, 325; Matter of 22-50 Jackson Ave. Assoc., L.P. v County of Suffolk , 216 AD3d 943, 947).

When no factual questions remain, a court may treat a CPLR 3211(a) motion to dismiss a declaratory claim as a motion for declaratory judgment.

Matter of Town of Carmel v. New York City Water Bd. · filed 2026-06-10(a)

Since no questions of fact were presented by so much of the fifth cause of action as sought a judgment declaring that the Water Board is acting in contravention of an established statutory scheme for setting rates for excess water consumption, the Supreme Court should have deemed that branch of the Water Board's motion which was pursuant to CPLR 3211(a) to dismiss that portion of the fifth cause of action to be for a declaratory judgment in the Water Board's favor, and thereupon granted it ( see Matter of Town of Riverhead v County of Suffolk , 237 AD3d 944, 948; Matter of 22-50 Jackson Ave. Assoc., L.P. v County of Suffolk , 216 AD3d 943, 947).

CPLR 3211(a)(7) does not permit dismissal of a notice of intention to file a claim for failing to state a cause of action because the notice need not allege one.

Devine v. State · filed 1990-06-01(a)(7)

To dismiss it pursuant to CPLR 3211 (a) (7) would be a contradiction in terms: one cannot dismiss a notice of intention for failing to state a cause of action when it is not required to allege one.

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, thereby extending the plaintiff's time to amend the complaint as of right.

Karp v. Madison Realty Capital, L.P. · filed 2026-04-29(f)

The plaintiffs correctly contend that the Supreme Court erred in determining that the plaintiffs required leave of court to amend the complaint. "Pursuant to CPLR 3211(f), service by the defendant[s] of the pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint extended the [defendants'] time to answer the complaint until 10 days after service of notice of entry of the order determining the motion, and therefore extended the time in which the [plaintiffs] could amend the complaint as of right" (Rosas v Petkovich, 218 AD3d 814, 816; see CPLR 3025[a]; Estate of Feenin v Bombace Wine & Spirits, Inc., 188 AD3d 1001, 1003).

A motion under CPLR 3211(a)(7) to dismiss the original complaint becomes academic when an amended complaint supersedes it.

Morris v. Goldstein · filed 1996-01-16(a)(7)

With respect to the branch of the appellant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the Supreme Court granted the plaintiff’s motion to file an amended complaint that superseded the original complaint. Thus, the issue is academic (see, Chalasani v Neuman, 64 NY2d 879).

Section 3211(f) permits a plaintiff to amend the complaint as of right while a motion to dismiss is pending.

Perez v. Wegman Companies, Inc. · filed 1990-06-22(f)

As long as defendant’s motion to dismiss was pending, plaintiff could amend her complaint as of right pursuant to CPLR 3025 (a) and 3211 (f) (see, Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799; Taylor v Haddad Corp., 118 Misc 2d 253, 255-256; Lipary v Posner, 96 Misc 2d 578; Siegel, 1988 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1990 Supp Pamph, CPLR C3211:65, at 8).

Service of an amended complaint abates a pending motion to dismiss under CPLR 3211 and renders it moot.

Gonzalez v. John T. Mather Memorial Hospital · filed 1990-07-24

This court does find, however, that the motion was abated by the service of the amended complaint and the motion then became moot.

Section 3211(f) extends the time to answer after a motion to dismiss, allowing a petitioner to amend as of right before an answer is served.

EFCO Products v. Cullen · filed 1990-09-10(f)

Since the respondents have moved to dismiss these petitions and have yet to interpose answers, EFCO may still serve amended petitions as of right to correct these defects (see, CPLR 3211 [f]; 3025 [a]; see, Siegel, NY Prac § 236).

Section 3211(f) extends the time to respond when a motion to dismiss is filed, allowing the opposing party to amend its pleading as of right during that period.

Toikach v. Basmanov · filed 2011-02-25(f)

Despite defendant’s failure to properly respond to the original motion before this court, defendant was entitled to amend the answer with counterclaims without leave of the court pursuant to CPLR 3025 and 3211 (f) and his amended answer should not be stricken.

Section 3211(e) permits a timely motion to dismiss to challenge a formal complaint that adds claims without leave of court.

JEM Transportation Corp. v. Blennau · filed 2012-09-21(e)

Consequently, defendant properly challenged the formal complaint through a timely motion to dismiss (see CPLR 3211 [e]).

A plaintiff may amend a complaint as of right after the defendant moves to dismiss the original complaint by filing the amendment and serving it on the defendant’s attorney.

D'Amico v. Correctional Medical Care, Inc. · filed 2014-08-08(f)

Initially, with respect to the CMC defendants, we note that plaintiff properly amended her complaint as of right by filing the verified amended complaint after the CMC defendants moved to dismiss the original complaint (see CPLR 3211 [f]; see also CPLR 3025 [a]; STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410 [1998]), and by contemporaneously serving the amended complaint on the CMC defendants’ attorney as part of her cross motion (see CPLR 2103 [b]).

A pending CPLR 3211 motion to dismiss does not abate when the complaint is amended.

Cassissi v. Yee · filed 2014-09-23

With regard to defendants’ CPLR 3211 motion to dismiss the 27th cause of action, that motion does not abate because it requires the court to determine not just whether the cause of action is properly pleaded, but whether plaintiffs in fact have such a cause of action.

A pending pre-answer motion to dismiss extends the time to answer, allowing the plaintiff to amend the complaint as of right while the motion is pending.

Catlin v. City of New York · filed 2025-09-29(f)

Because a motion to dismiss extends the defendant's time to answer the complaint until ten days after service of notice of entry of an order deciding the motion, the plaintiff may amend the complaint as of right during the pendency of a pre-answer motion to dismiss (CPLR § 3211 [f]; Roam Cap., Inc. v Asia Alternatives Mgmt. LLC , 194 AD3d 585, 585-586 [1st Dept 2021]). Therefore, Plaintiff is entitled to amend his complaint as of right and the motion is granted.

Section 3211 dismissal does not extend to defendants who did not move to dismiss the complaint.

Behren v. Blumstein · filed 1990-09-06

Defendants William Somers and Investment Properties, Inc., ... did not move to dismiss the amended complaint. Nevertheless, the relevant parties to this appeal have inferred, with some basis, that the November 14, 1989 order dismissed the amended complaint as against such nonmoving parties. In order to clarify further proceedings, we expressly reinstate the amended complaint as against such nonmoving parties.

CPLR 3211(a)(7) permits dismissal against a defendant who has appeared in the action.

Talley v. Winfrey · filed 2002-02-14(a)(7)

King World was the only defendant to appear in the action and, accordingly, the only defendant against whom the complaint could have been dismissed pursuant to CPLR 3211 (a) (7).

A court cannot dismiss claims against a defendant who did not move for relief under CPLR 3211(a).

Torrance Construction, Inc. v. Jaques · filed 2015-04-02(a)

On the other hand, in the absence of a CPLR 3211 (a) motion by Jaques, the court was without authority to search the record and dismiss any claims against him (see Mann v Rusk, 14 AD3d 909, 910 [2005]; compare CPLR 3212 [b] [permitting court to search the record on a summary judgment motion and grant relief to a nonmoving party]).

A court may hold a CPLR 3211(a)(2) motion in abeyance while pending bankruptcy proceedings resolve matters relevant to the jurisdictional dispute.

First American Bank v. Nigro · filed 1990-11-27(a)(2)

Since it is unclear whether the Bankruptcy Court will ultimately undertake jurisdiction over the guarantee itself, dismissal of the instant action was premature. To insure that the rights of all parties are fully protected, decision on the motion to dismiss should be held in abeyance pending a final disposition of the relevant matters by the Bankruptcy Court.

Section 3211(d) permits a court to hold a motion to dismiss in abeyance while further discovery is conducted.

Mayo v. Grotthenthaler · filed 2006-01-19(d)

CPLR 3211 (d) and 3212 (f) each permit a court to hold an accelerated judgment motion in abeyance pending further discovery.

A motion to dismiss generally does not permit the court to weigh evidence or resolve credibility disputes that should be tried.

Klemm v. State · filed 1991-02-04

"In the absence of serious flaws in a * * * statement of facts, the weighing of the evidence is more appropriately a function to be exercised at the actual trial, rather than on a motion to dismiss” (Dozier v State of New York, 134 AD2d 759, 761). In the instant case, a resolution of the claim involves an assessment of the credibility of the evidence and should await a trial.

Section 3211(a)(5) permits dismissal when an issue was litigated and decided in a prior proceeding.

Park v. 27 Wash. Sq. N. Owners LLC · filed 2019-11-19(a)(5)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 8, 2018, which granted defendant's motion to dismiss the action pursuant to CPLR 3211(a)(5), unanimously affirmed, with costs. Contrary to plaintiffs' contention, the rent regulatory status of their apartment was litigated and decided in a prior proceeding ( see Matter of Park v New York State Div. of Hous. & Community Renewal , 150 AD3d 105 [1st Dept 2017]).

Section 3211(a)(5) permits dismissal of counterclaims when the parties had a full and fair opportunity to litigate the same material facts and questions in an earlier action.

GG Managers, Inc. v. Fidata Trust Co. · filed 1995-05-16(a)(5)

Order, Supreme Court, New York County (Stuart Cohen, J.), entered August 2, 1993, which, inter alia, granted plaintiff summary judgment pursuant to CPLR 3212 against defendants Fidata Trust Company New York ("FTCNY”), Fidata Corporation ("FC”) and Advanced Medical Inc. ("AM”) in the amount of $108,484.18, together with interest, on the first and second causes of action of the amended complaint, and which granted plaintiff’s motion pursuant to CPLR 3211 (a) (5) to dismiss the defendants’ counterclaims, unanimously affirmed, with costs. ... Defendants had a full and fair opportunity, and did, in fact, ... litigate the material facts and questions raised in their counterclaims before those forums, they are therefore collaterally estopped from relitigating the facts set forth in their amended counterclaims (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 70).

A dismissal under CPLR 3211(a)(5) on collateral estoppel grounds requires the prior disposition asserted as a bar to have been on the merits.

Stevens v. Kirk · filed 1991-03-26(a)(5)

In order to invoke the doctrine of res judicata or collateral estoppel, it is essential that the disposition asserted as a bar to further prosecution of the action be one on the merits (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Siegel, NY Prac § 446).

A party seeking dismissal under CPLR 3211(a)(5) on collateral-estoppel grounds must establish that the identical issue was necessarily decided in the prior action.

Nappe v. Correri · filed 1992-03-02(a)(5)

The court properly determined that the defendants may not rely on the doctrine of collateral estoppel to defeat the plaintiffs’ cause of action. The defendants failed to meet their burden of establishing that the identical issue was necessarily decided in the underlying action.

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds when the plaintiff had a full opportunity to litigate the same issues against a party in privity with the defendant.

Kovitz v. Tesmetges · filed 1992-09-10(a)(5)

Since Terry was and is in complete privity with Harry, and since plaintiff had a full opportunity to litigate those issues, his identical claims in this action are barred by collateral estoppel, and the IAS Court properly dismissed the complaint (see, Firedoor Corp. v Merlin Indus., 86 AD2d 577; cf., Green v Sante Fe Indus., 70 NY2d 244).

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds even when the moving defendant was not a party to the prior action.

Brooklyn Hospital — Caledonian Hospital v. Medical Liability Mutual Insurance · filed 1993-11-15(a)(5)

We find, contrary to the plaintiffs contentions, that the Supreme Court properly held that the present action is not maintainable because of the doctrine of collateral estoppel (see, CPLR 3211 [a] [5]). Although the defendant was not a party to the prior action, it need not have been one in order to invoke the doctrine (see, Israel v Wood Dolson Co., 1 NY2d 116).

Section 3211(a)(5) permits dismissal of a complaint on collateral estoppel grounds.

Browning Avenue Realty Corp. v. Rubin · filed 1994-08-04(a)(5)

We agree with the defendants, however, that the complaint must be dismissed on collateral estoppel grounds.

CPLR 3211(a)(5) permits dismissal when a prior arbitration decided an identical, decisive issue and the plaintiff fails to show a lack of full and fair opportunity to litigate it.

Lobel v. Allstate Insurance · filed 2000-02-22(a)(5)

The defendant demonstrated that the issue in the arbitration proceeding was identical to and decisive of this cause of action. The plaintiff failed to establish the absence of a full and fair opportunity to litigate the issue in the prior matter (see, Ryan v New York Tel. Co., 62 NY2d 494, 501). Accordingly, the first cause of action should have been dismissed pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal on collateral estoppel grounds when the plaintiff had a full and fair opportunity to litigate the issue in an earlier proceeding.

9-10 Auden Place, L. L. C. v. Chen · filed 2001-01-29(a)(5)

The plaintiff failed to demonstrate the absence of a full and fair opportunity to litigate this issue before the DHCR, and accordingly the Supreme Court properly dismissed the complaint on the ground that the action was barred by the doctrine of collateral estoppel (see, CPLR 3211 [a] [5]; Grassini v Paravalos, 270 AD2d 52).

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds when the same issue was previously decided and the plaintiff had a full and fair opportunity to litigate it.

Mathieu v. Scalea · filed 2001-07-30(a)(5)

Here, the issue of the cause of the decedent’s death is identical to the issue presented in the Court of Claims, and the plaintiff had a full and fair opportunity to litigate the issue. The plaintiff is collaterally estopped from arguing that the decedent’s death was caused by something other than the preexisting coronary artery disease. Therefore, the Supreme Court properly dismissed the wrongful death cause of action insofar as asserted against the respondents (see, CPLR 3211 [a] [5]).

Section 3211(a)(5) permits dismissal of causes of action barred by collateral estoppel.

SKEK Associates v. Benenson · filed 2002-04-29(a)(5)

Since SKEK “had a full and fair opportunity to litigate [this] issue” in that proceeding, the doctrine of collateral estoppel operates to prevent it from raising the issue once again in the instant action (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). Thus, the Supreme Court should have dismissed the second and third causes of action in action No. 1 (see CPLR 3211 [a] [5]).

CPLR 3211(a)(5) permits dismissal when a claim depends on relitigating an issue resolved in arbitration after a full and fair opportunity to litigate it.

I. Appel Corp. v. Mahoney Cohen & Co. · filed 2002-05-16(a)(5)

In this action for accounting malpractice, the motion court properly dismissed those portions of the complaint that pertained to the 1995 financial statement of I. Appel Corporation. The issue of whether plaintiff Feinberg had relied on the 1995 financial statement prepared by defendants was fully litigated in an arbitration proceeding brought by Feinberg, in which the arbitrators found that plaintiff Feinberg had not relied on the 1995 financial statement.

Section 3211(a)(5) permits dismissal of a complaint when collateral estoppel bars allegations material to its claims.

Todd Bank v. Brooklyn Law School · filed 2002-09-30(a)(5)

As those allegations are material elements of the plaintiffs claims in this action, and the plaintiff had a full and fair opportunity to oppose the defendant’s motion to dismiss the federal action, the present action is barred by the doctrine of collateral estoppel. The Supreme Court therefore properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal of a complaint barred by collateral estoppel.

Hogan v. Town of Riverhead · filed 2003-02-18(a)(5)

Contrary to the plaintiffs contention, the Supreme Court properly granted the defendant’s renewed motion to dismiss the complaint on the ground that it was barred by the doctrine of collateral estoppel (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343 [1999]; Matter of Kaufman v Office of Bldg. Inspector, Vil. of Mamaroneck, 295 AD2d 349 [2002]).

Section 3211(a)(5) permits dismissal when a claim is barred by a prior judgment or determination, including collateral estoppel.

Kleinman v. E.L. Tool & Die Co. Inc. · filed 2006-06-06(a)(5)

For the reasons set forth below, we reverse the order and find that defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) should be denied. At the outset, it is clear that the action is not barred by collateral estoppel (Color By Pergament v O’Henry’s Film Works, 278 AD2d 92, 93 [2000], citing D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). In the Westchester County action, Justice Colabella determined that Ricotta was not personally liable for the corporate loans. However, the court simply did not decide whether the underlying corporate debt owed to plaintiffs by E.L. Tool & Die Co. and Earrings by Cristina, Inc. had been released.

Section 3211(a)(5) permits dismissal of a cause of action when collateral estoppel bars the claim because the relevant issues were actually litigated and determined in a prior proceeding.

DiLauria v. Town of Harrison · filed 2006-08-22(a)(5)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the plaintiff’s second cause of action on the ground of collateral estoppel is denied, and the second cause of action is reinstated. ... Because the issues of discrimination raised by the plaintiff in this action, as well as the issues concerning the damages recoverable as a consequence, were not actually litigated in the plaintiffs prior CPLR article 78 proceeding, he cannot be collaterally estopped from litigating them here (see Board of Educ. of Manhasset Union Free School Dist. v New York State Human Rights Appeal Bd., 106 AD2d 364 [1984]; see also Grovesteen v New York State Pub. Empls. Fedn., AFL-CIO, 265 AD2d 784 [1999]; Crespo v 160 W End Ave. Owners Corp., 253 AD2d 28 [1999]; cf. Barrett v City of New York, 166 AD2d 241 [1990]).

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds when a prior proceeding necessarily decided the same material issue and the opposing party had a full and fair opportunity to contest it.

D'Angelo v. State Insurance Fund · filed 2008-02-05(a)(5)

Since the plaintiffs failed to meet their burden of establishing that they did not have a full and fair opportunity to contest that issue ... the Supreme Court erred in denying that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) does not support dismissal on collateral-estoppel grounds when the prior determination asserted to bar the claim has been overturned.

Kaatsbaan International Dance Center, Inc. v. TBays, LLC · filed 2008-09-23(a)(5)

The Supreme Court, therefore, should not have granted that branch of the defendants’ cross motion which was to dismiss the complaint on the ground that the plaintiff was collaterally estopped from setting aside the transfer of the real property by virtue of the Supreme Court’s determination in the related action that the judicial sale was valid.

A prior agency decision addressing only its jurisdiction does not support dismissal on collateral estoppel grounds under CPLR 3211(a)(5).

McGee v. J. Dunn Construction Corp. · filed 2008-09-30(a)(5)

Since that decision did not address the merits of the dispute, the Supreme Court correctly concluded that it did not preclude the claims made by the plaintiff in this action. Accordingly, that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5) was properly denied.

Section 3211(a)(5) permits dismissal based on collateral estoppel when the issues were necessarily decided in a prior action and the opposing party had a full and fair opportunity to litigate them.

In re Estate of Blanco · filed 2009-01-13(a)(5)

Thus, the Surrogate’s Court properly granted Orra’s motion to dismiss the proceeding as barred by the doctrine of collateral estoppel.

A CPLR 3211(a)(5) motion based on collateral estoppel fails if the movant does not establish that the proceeding is barred.

In re C. · filed 2009-02-17(a)(5)

The father failed to establish that the proceeding was barred by the doctrine of collateral estoppel (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456 [1985]). Accordingly, the Family Court properly denied his motion to dismiss the proceedings (see CPLR 3211 [a] [5]).

Section 3211(a)(5) permits a court to limit recovery when a prior arbitration determination of the same damages has collateral estoppel effect.

Augello v. Koenig-Rivkin · filed 2009-10-27(a)(5)

The Supreme Court also properly granted those branches of the separate motions of the defendants which were pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them to the extent of limiting the plaintiffs recovery. ... Accordingly, the Supreme Court properly gave collateral estoppel effect to the previous determination of damages by the arbitrator which was based on the medical evidence proffered by the plaintiff and where the injuries pertained to the same accident and thus, “are necessarily identical” (Stuzin v Pizza Hut, 241 AD2d 647, 648 [1997]; see Spasiano v Provident Mut. Life Ins. Co., 2 AD3d 1466, 1468 [2003]; see generally Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 196-197 [1980]).

CPLR 3211(a)(5) permits dismissal when collateral estoppel bars a party from relitigating issues decided in a prior proceeding after a full and fair opportunity to contest them.

Yellow Cab of Newburgh, Inc. v. Westchester County · filed 2010-04-13(a)(5)

The appellant failed to sustain its burden of demonstrating that it lacked a full and fair opportunity to contest those issues in that hybrid proceeding and action (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 664). Accordingly, the Supreme Court properly granted that branch of the motion of the County and the TLC which was pursuant to CPLR 3211 (a) (5) to dismiss the petition/complaint insofar as asserted by the appellant.

Section 3211(a)(5) does not support dismissal on collateral estoppel grounds when the prior declaratory judgment was entered on default.

Bedford Medical Care, P.C. v. Encompass Insurance · filed 2011-01-03(a)(5)

The line of appellate cases referenced above adheres to the principle that collateral estoppel does not apply where there has been a default in the prior action. ... That said, in light of the current appellate case law, the court is constrained from dismissing this case on the basis of collateral estoppel.

CPLR 3211(a)(5) permits dismissal when findings in a prior arbitration preclude relitigation of an issue.

Bernard v. Proskauer Rose, LLP · filed 2011-08-04(a)(5)

It is well settled that prior arbitration awards may be given preclusive effect in a subsequent judicial action (CPLR 3211 [a] [5]; Matter of Metro-North Commuter R.R. Co. v New York State Exec. Dept. Div. of Human Rights, 271 AD2d 256, 257 [2000]).

Section 3211(a)(5) permits dismissal when collateral estoppel bars relitigation of issues decided after a full and fair opportunity to litigate.

Kingston v. New York City Department of Homelessness Services · filed 2014-03-27(a)(5)

Plaintiffs action is also barred by the doctrine of collateral estoppel. Plaintiff previously commenced an action in Housing Court seeking correction of alleged violations of the Administrative Code by defendant, and the issues raised in that action, which plaintiff had a full and fair opportunity to litigate, and which were decided against her, are the same issues she raises in this action (see Ventur Group, LLC v Finnerty, 80 AD3d 474, 475 [1st Dept 2011]; CPLR 3211 [a] [5]).

Section 3211(a)(5) does not support dismissal on collateral estoppel grounds when the prior administrative notice was not shown to follow a hearing or otherwise be quasi-judicial.

Twaddell v. Drop & Lock Storage Co. · filed 2014-05-21(a)(5)

Here, the record does not demonstrate that the Notice of Determination was rendered after a hearing or that it otherwise constitutes a quasi-judicial determination (see Labor Law § 620; Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276 [1988]; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 72 [1969]; Altegra Credit Co. v Tin Chu, 29 AD3d 718, 719 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d 768 [2005]; see also Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]). ... Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of collateral estoppel.

Section 3211(a)(5) permits dismissal of counterclaims on collateral estoppel grounds when a prior arbitration award decided the same issues and the opposing party had a full and fair opportunity to litigate them.

Mew Equity, LLC v. Sutton Land Services, LLC · filed 2016-11-16(a)(5)

Accordingly, the Supreme Court properly gave collateral estoppel effect to the 2012 award, and properly directed the dismissal of the Brach/Roth defendants’ counterclaims pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) does not permit dismissal on collateral estoppel grounds when the prior dismissal for failure to state a cause of action did not determine the merits.

FC Notes SVC, LLC v. United General Title Insurance Co. · filed 2017-01-25(a)(5)

Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the basis that the action was barred by collateral estoppel.

A motion to dismiss under CPLR 3211(a)(5) on collateral estoppel grounds fails unless the movant establishes that an identical issue was necessarily decided in an earlier proceeding.

Wax Ex Rel. Wax v. 716 Realty, LLC · filed 2017-06-14(a)(5)

The Supreme Court also should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them as barred by the doctrine of collateral estoppel, or issue preclusion. ... Here, the defendants failed to establish that an issue identical to one presented in this action was necessarily decided in either of the two prior Civil Court proceedings.

Section 3211(a)(5) permits dismissal on collateral estoppel grounds when the issues are identical and the plaintiff had a full and fair opportunity to litigate them in a prior action.

Dafna v. Homapour · filed 2017-08-02(a)(5)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the fourth and ninth causes of action as barred by the doctrine of collateral estoppel.

A party seeking dismissal under CPLR 3211(a)(5) based on collateral estoppel must show that the issue decided in the earlier action is identical to the issue in the current action.

HSBC Bank USA, N.A. v. Carchi · filed 2019-11-13(a)(5)

Since the defendants failed to meet their burden of showing "the identity of the issues" ( Matter of Dunn , 24 NY3d at 704; see U.S. Bank N.A. v Friedman , 175 AD3d 1341, 1342-1343; Bank of N.Y. Mellon v Chamoula , 170 AD3d at 790-791), we agree with the Supreme Court's determination denying the defendants' motion, inter alia, to dismiss the complaint insofar as asserted against them as barred by the doctrine of collateral estoppel.

CPLR 3211(a)(5) permits dismissal when collateral estoppel bars the complaint.

Napoli v. Breaking Media, Inc. · filed 2020-10-21(a)(5)

Accordingly, since the complaint alleges that the defendants committed defamation by making substantially the same statements that were made in the Post articles, the defendants established that the complaint is barred by the doctrine of collateral estoppel ( see CPLR 3211[a][5]; Karakash v Trakas , 163 AD3d 788, 789-790; Constantine v Teachers Coll. , 93 AD3d 493, 494).

CPLR 3211(a)(5) permits dismissal of a claim precluded by collateral estoppel.

Margulies v. USAA Cas. Ins. Co. · filed 2021-02-18(a)(5)

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 10, 2019, which granted defendant's (USAA) motion pursuant to CPLR 3211(a)(5) to dismiss the claim for payment of a judgment entered against plaintiff (Margulies) upon his default in an underlying action and denied the motion as to the claim for defense costs and fees incurred by Margulies in that action, unanimously affirmed, without costs. ... The claim for payment of the judgment is precluded by collateral estoppel ( see Paramount Pictures Corp. v Allianz Risk Transfer AG , 31 NY3d 64, 72 [2018]).

A movant seeking dismissal under CPLR 3211(a)(5) based on collateral estoppel must prove that an identical issue was necessarily decided in the prior proceeding.

Jaber v. Elayyan · filed 2021-02-24(a)(5)

Based on the very limited information contained in the record regarding the New York action, Elayyan and Whitwell have failed to satisfy their burden of proving that the subject matter of the cross claims are identical to those raised in the New York action and were necessarily decided against Farhoud ( see Citibank, N.A. v Burns , 187 AD3d 839). Accordingly, that branch of the motion of Elayyan and Whitwell which was pursuant to CPLR 3211(a)(5) to dismiss the cross claims asserted by Farhoud, individually, should have been denied.

Section 3211 requires a collateral estoppel defense to be raised in an answer or a pre-answer motion to dismiss, unless the court grants leave to amend the answer.

Lennon v. 56th & Park(NY) Owner, LLC · filed 2021-09-15(e)

Apart from the foregoing, collateral estoppel is included in the menu of defenses that, if not raised in an answer as an affirmative defense or in a pre-answer motion to dismiss, is waived ( see CPLR 3211[a][5]; [e]; Onate v Fernandez , 184 AD3d 725, 727; Browne v Board of Educ. , 122 AD3d 563; Ofman v Ginsberg , 89 AD3d 908, 909). The defendants did not assert the doctrine as an affirmative defense in their answer to the second amended complaint. Therefore, for the defendants to rely upon the doctrine as a potential defense to the action, they could not do so absent leave of court to amend their answer and thereby revive the collateral estoppel defense.

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds when a prior action necessarily decided the issues against the plaintiff and the plaintiff had a full and fair opportunity to litigate them.

Reid v. Reid · filed 2021-10-27(a)(5)

The defendants separately moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as barred by the doctrines of res judicata and collateral estoppel. The court granted the motions. While the doctrine of res judicata does not bar the plaintiff's present claims ( see Xiao Yang Chen v Fischer , 6 NY3d 94; Parker v Blauvelt Volunteer Fire Co. , 93 NY2d 343), the Supreme Court properly applied the doctrine of collateral estoppel to preclude the plaintiff from relitigating the issues in the instant action.

CPLR 3211(a)(5) permits dismissal when a prior foreclosure judgment precludes the issues raised in the complaint.

Savory v. Wells Fargo Bank, NA · filed 2022-02-16(a)(5)

Here, the issues raised by the plaintiff in this action were or could have been litigated in the foreclosure action, and he is therefore precluded from relitigating them in this action ( see id. ). Therefore, the Supreme Court properly granted the Wells Fargo defendants' motion to dismiss the complaint insofar as asserted against them, and properly directed dismissal of the complaint insofar as asserted against the remaining defendants.

CPLR 3211(a)(5) permits dismissal on collateral estoppel grounds when prior federal factual findings preclude relitigation of a City Human Rights Law claim.

Russell v. New York Univ. · filed 2022-04-26(a)(5)

However, for the reasons outlined above, we conclude that the retaliation claim under the City Human Rights Law must be dismissed under the doctrine of collateral estoppel.

A party seeking dismissal under section 3211(a)(5) based on collateral estoppel must establish that the prior proceeding necessarily decided an identical issue.

Firescu v. Diamond · filed 2023-10-24(a)(5)

Plaintiff failed to establish that he was entitled to dismissal of defendant's counterclaim on the basis of collateral estoppel, as he has failed to demonstrate that there is an identity of issues necessarily decided in a prior arbitration involving the parties in this action (CPLR 3211[a][5]).

A defendant waives a collateral estoppel defense by failing to move to dismiss before answering and failing to raise the defense in its responsive pleading.

Darbeau v. 136 W. 3rd St., LLC · filed 2024-03-26(e)

The LLC, which did not move to dismiss prior to answering the complaint, waived the defense of collateral estoppel by failing to raise it in the responsive pleading (CPLR 3211[a][5], [e]).

Section 3211(a)(5) allows a party to seek dismissal of a cause of action based on collateral estoppel.

Villaver v. Paglinawan · filed 2024-08-07(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of collateral estoppel ( see 23 E. 39th St. Dev., LLC v 23 E. 39th St. Mgt. Corp. , 172 AD3d 964, 967). ... Thus, the Supreme Court should not have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground of collateral estoppel.

CPLR 3211(a)(5) permits dismissal of claims barred by collateral estoppel.

Landa v. Friedman · filed 2024-10-22(a)(5)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about July 11, 2023, which denied third-party defendant Mark Landa's motion to dismiss the first and second causes of action of the third-party complaint as against him pursuant to CPLR 3211(a)(1), (5), and (7), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly. The first cause of action in the third-party complaint— for a declaratory judgment setting forth the parties' ownership rights in a certain apartment — and the second — for a constructive trust to provide to third-party plaintiff Alexander Friedman his ownership interest in the apartment — are barred by collateral estoppel ( see generally Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]).

Section 3211(a)(5) does not support dismissal on collateral-estoppel grounds when the issues were not decided against the plaintiff in a prior proceeding.

Johnson-Lancaster & Assoc., Inc. v. Veritas Constr. Servs., Inc. · filed 2025-05-30(a)(5)

As an initial matter, there is no basis for dismissal under CPLR § 3211(a)(5), as the issues raised herein have not been raised in a prior proceeding or determined against plaintiff.

Section 3211(a)(5) permits dismissal of a cause of action barred by collateral estoppel.

Karakash v. Trakas · filed 2018-07-18(a)(5)

CPLR 3211(a)(5) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . collateral estoppel" ( see Burgos v New York Presbyt. Hosp ., 155 AD3d 598, 600).

Section 3211(a)(11) does not warrant dismissal when defendants fail to provide the chief financial officer’s affidavit establishing uncompensated status and the alleged conduct has a reasonable probability of constituting gross negligence.

Karen S. v. Streitferdt · filed 1991-04-30(a)(11)

The individual defendants’ motion for dismissal pursuant to CPLR 3211 (a) (11) was properly denied. The defendants did not present "presumptive evidence of uncompensated status” in that they did not present "an affidavit of the chief financial officer of the corporation, association, organization or trust.” (CPLR 3211 [a] [11].) Further, "there is a reasonable probability that the specific conduct of such defendants] alleged constitutes gross negligence” (CPLR 3211 [a] [11]).

On a CPLR 3211(a)(7) motion to strike an affirmative defense, a court may search the record and dismiss the complaint, but the inquiry concerns the sufficiency of the pleadings rather than an evaluation of the claim.

Rosenfeld v. Rosenblum · filed 1991-10-24(a)(7)

Although this Court is empowered to "search the record” and dismiss a complaint upon the plaintiff having moved to strike a defendant’s affirmative defense pursuant to CPLR 3211 (a) (7) (see, Rand v Hearst Corp., 31 AD2d 406, 408, affd 26 NY2d 806) we choose not to do so in respect to defendant’s claim that plaintiff has failed to establish an equitable lien. To do so would be more akin to a summary judgment motion, necessitating an evaluation of the claim, rather than the sufficiency of the pleadings.

CPLR 3211(f) does not automatically extend the time to respond when a dismissal motion is made against a CPLR 3213 motion.

Thompson v. Olsen · filed 1991-11-26(f)

There is no automatic CPLR 3211 (f)-type extension for a dismissal motion made against a CPLR 3213 motion (Siegel, 1986 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:15, 1991 Supp Pamph, at 572-573).

A motion to dismiss under Section 3211(a)(7) extends the defendant’s time to answer.

STS Management Development, Inc. v. New York State Department of Taxation & Finance · filed 1998-10-19(f)

The defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) extended the defendants’ time to answer (see, CPLR 3211 [f]) and thus extended the time in which the plaintiffs could amend their complaint as of right (see, CPLR 3025 [a]; Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799).

Section 3211 extends the time to answer only when the motion to dismiss is made before the answer is due.

Djokic v. Perez · filed 2008-12-15(f)

A CPLR 3211 motion to dismiss will extend a respondent’s time to serve an answer only if the motion is made before that pleading was originally due (in this case, Feb. 26, 2008).

Section 3211(f) does not automatically give a defendant extra time to respond when seeking dismissal of a CPLR 3213 motion.

Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L. · filed 2010-10-19(f)

“There is no automatic CPLR 3211 (f)-type extension for a dismissal motion made ... against a CPLR 3213 motion” ... Pieper was simply not entitled to additional time to respond to the merits of plaintiffs motion, and he made no showing of a particular reason why he should be awarded additional time in the court’s discretion.

A motion to dismiss under CPLR 3211(a) or (b) extends the time to answer under subdivision (f); a motion for leave to reargue does not.

Vigo v. 501 Second Street Holding Corp. · filed 2012-11-21(f)

The appellant contends that by moving for leave to reargue its prior motion to dismiss the amended complaint pursuant to CPLR 3211, its time to serve and file an answer to the amended complaint was extended, pursuant to CPLR 3211 (f), until 10 days after service of notice of entry of the order determining the reargument motion. This contention is incorrect. Only a motion to dismiss an action or a defense, in accordance with CPLR 3211 (a) or (b), serves to so extend the time to serve and file an answer.

Section 3211(f) extends the time to answer after a pre-answer motion to dismiss, which can also extend the plaintiff's time to amend the complaint as of right.

Rosas v. Petkovich · filed 2023-07-26(f)

Pursuant to CPLR 3211(f), service by the defendant of the pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint extended the defendant's time to answer the complaint until 10 days after service of notice of entry of the order determining the motion, and therefore extended the time in which the plaintiff could amend the complaint as of right ( see id. § 3025[a]; Estate of Feenin v Bombace Wine & Spirits, Inc. , 188 AD3d 1001, 1003; Re-Poly Mfg. Corp. v Dragonides , 109 AD3d 532, 534-535).

Section 3211(f) extends the time to respond to a pleading until ten days after service of notice of entry of an order disposing of a pre-answer motion to dismiss.

Harris v. City of New York · filed 2025-03-19(f)

Where, as here, a defendant files a pre-answer motion, the time to file a responsive pleading is automatically extended until ten (10) days after the movant is served [*3]with notice of entry of an order that disposes the motion (CPLR § 3211[f]).

On a motion to dismiss based on release, a clear and unambiguous written release shifts the burden to the plaintiff to show facts sufficient to void it.

Pastrana-Ortiz v. Wemple · filed 2025-06-06(a)(5)

Here, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground of release and submitted the written release, which contained clear and unambiguous language, thereby shifting the burden to plaintiff to show that there has been fraud, duress or some other fact that will be sufficient to void the release.

A factual question about whether a release was signed under duress precludes dismissal under section 3211(a) at that stage.

Itzkowitz v. Ginsburg · filed 2020-08-12(a)

Whether Neger, as alleged in an affidavit, signed the release under duress is a question of fact that precludes the dismissal of these claims at this juncture.

CPLR 3211(a)(1), (5), and (7) allow dismissal based on documentary evidence establishing a release, and a court may treat a motion naming the wrong ground as invoking the applicable ground when there is no prejudice.

Miller v. Brunner · filed 2018-09-12(a)(1), (5), and (7)

As a threshold matter, and contrary to the plaintiffs' contention, the defendants' failure to move specifically pursuant to CPLR 3211(a)(5) on the basis of the release does not warrant the denial of that branch of their motion on procedural grounds. The release constitutes documentary evidence upon which dismissal pursuant to CPLR 3211(a)(1) may be granted ( see e.g. Alvarez v Amicucci , 82 AD3d 687, 688). Furthermore, although CPLR 3211(a)(5)—which covers, inter alia, the defense of release—was not specifically asserted, the defendants clearly moved to dismiss the first cause of action based upon the defense of release. "[W]here the wrong ground is designated but other CPLR 3211(a) grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice, which has not been demonstrated" ( Dean R. Pelton Co. v Moundsville Shopping Plaza, Inc ., 173 AD2d 201, 201; see Siegel, NY Prac § 258 [5th ed 2011]).

CPLR 3211(a)(5) permits dismissal when a plaintiff’s general release bars the action.

Litchmore v. Sidney Martin Inc. · filed 1994-11-28(a)(5)

The plaintiffs’ execution of a general release serves as an absolute bar to the instant action (see, CPLR 3211 [a] [5]).

Under CPLR 3211(a)(5), conclusory allegations of economic duress and overreaching do not defeat a motion to dismiss based on a release without evidentiary facts raising a triable issue about the release’s validity.

Moskowitz v. General Accident Insurance · filed 1992-01-15(a)(5)

The court properly granted the defendant Krieger’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) insofar as it is asserted against him. The conclusory allegations submitted in support of the plaintiffs’ assertions of economic duress and overreaching were not supported by evidentiary facts sufficient to present a triable issue regarding the validity ...of the release (see, Ermco Erectors v Grand Iron Works, 93 AD2d 878, affd 60 NY2d 634).

Under CPLR 3211(a)(5), a factual dispute over whether fraud procured a release can defeat a motion to dismiss based on that release.

Aharon v. Kim · filed 1994-06-27(a)(5)

As the trial court correctly concluded, the plaintiffs’ papers in opposition to the appellant’s motion clearly raise an issue of fact with regard to their claim that execution of the release was procured by fraud (see, Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217; cf., Sofio v Hughes, 162 AD2d 518).

Section 3211(a)(5) permits dismissal on the ground of release when the release covers the claim and the releasee had no reason to know of the claimant’s subrogation rights.

State Farm Mutual Automobile Insurance v. Hertz Corp. · filed 2006-04-18(a)(5)

The plaintiff, via the extrinsic evidence submitted on the motion, established that the general release, executed in connection with the underlying personal injury action, was intended to cover the subject matter of the action. ... Under the circumstances, Weinreb did not know or have reason to know of the plaintiff’s subrogation rights at the time he entered into the settlement (see Nationwide Ins. Co. v Mocchia, supra; cf. Aetna Cas. & Sur. Co. v Schulman, 70 AD2d 792, 793 [1979]; Scavone v Kings Craft Corp., supra; Aetna Cas. & Sur. Co. v Norwalk Foods, 125 Misc 2d 986 [1984]). ... Therefore, the Supreme Court should have granted Weinreb’s motion to dismiss the third-party complaint.

Section 3211(a)(5) permits dismissal when a release encompasses the agreement on which the action is based.

Alvarez v. Amicucci · filed 2011-03-01(a)(5)

Thus, the 1997 release encompasses the prior 1995 agreement, and the plaintiffs’ action is barred (see CPLR 3211 [a] [5]).

Section 3211 permits dismissal when a written release precludes the claims in the complaint.

Foundry Capital Sarl v. International Value Advisers, LLC · filed 2012-06-21(a)(1), (a)(5)

Supreme Court properly granted defendant’s motion to dismiss because the written release, which plaintiff executed on November 22, 2010, precludes plaintiff from making the claims set forth in the complaint (see CPLR 3211 [a] [1], [5]).

CPLR 3211(a)(5) permits dismissal on the ground of release only when the release covers the claims asserted.

Nucci v. Nucci · filed 2014-06-11(a)(5)

Since this action does not involve the administration of the insurance trust or any trust containing the assets of the insurance trust, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of release (see Wechsler v Diamond Sugar Co., Inc., 29 AD3d at 682; see generally Burnside 711 LLC v Amerada Hess Corp., 109 AD3d at 861; Desiderio v Geico Gen. Ins. Co., 107 AD3d at 663).

A motion to dismiss based solely on a release should be denied when the plaintiff alleges fraud or duress in procuring the release.

FordvPhillips · filed 2014-10-16(a)(5)

As to the fraudulent inducement claim, a motion to dismiss a complaint based solely upon a release should be denied when the plaintiff alleges fraud or duress in the release's procurement (see Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]; Steen v Bump, 233 AD2d 583, 584 [1996], lv denied 89 NY2d 808 [1997]; see also Warmhold v Zagarino, 106 AD3d 994, 995 [2013]; Bloss v Va'ad Harabonim of Riverdale, 203 AD2d 36, 37 [1994]).

CPLR 3211(a)(5) permits dismissal when a general release bars the action.

Liotti v. Galasso, Langione & Botter · filed 2015-05-20(a)(5)

Contrary to the plaintiffs’ contention, the Supreme Court properly granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) on the ground that the action was barred by a general release.

An oral application based on a release is not a CPLR 3211(a)(5) motion to dismiss when it is, in effect, an untimely motion for summary judgment.

Martinez v. Premium Laundry Corp. · filed 2016-03-01(a)(5)

Contrary to defendant’s contention, its oral application was not a motion to dismiss pursuant to CPLR 3211 (a) (5) on the ground of release, but was, in effect, an untimely motion for summary judgment (see Samuels v Consolidated Edison Co. of N.Y., Inc., 96 AD3d 685 [1st Dept 2012]).

Section 3211(a)(5) permits dismissal of claims encompassed by a release.

Marinaccio v. Town of Clarence · filed 2017-06-16(a)(5)

We reject plaintiff's contention that the court erred in granting those parts of defendant's motion with respect to the fourth and fifth causes of action, for negligence and nuisance, respectively, inasmuch as those causes of action were encompassed by the release ( see CPLR 3211 [a] [5]; see generally Abdulla , 124 AD3d at 1257), and the third cause of action, for breach of the covenant of good faith, inasmuch as it is premised on the same allegations and seeks the same relief as the first and second causes of action, for breach of contract ( see DiPizio Constr. Co., Inc. v Niagara Frontier Transp. Auth. , 107 AD3d 1565, 1566-1567).

On a motion to dismiss based on a release, the defendant must first establish that the release covers the claims; the burden then shifts to the plaintiff to show a basis for voiding it.

Armenta v. Preston · filed 2021-07-16(a)(5)

Here, defendant met his initial burden of establishing that he had been released from the claims against him by submitting the executed release in support of his motion, and thus the burden shifted to plaintiff " 'to show that there has been fraud, duress or some other fact which will be sufficient to void the release' " ( id. , quoting Fleming v Ponziani , 24 NY2d 105, 111 [1969]).

On a motion to dismiss based on a release, defendants who establish a binding general release shift the burden to the plaintiff to raise factual questions about whether it bars the action.

M.M. v. Church of Our Lady of the Annunciation · filed 2022-03-03(a)(5)

Defendants therefore demonstrated the existence of a binding general release, shifting the burden to plaintiff to show questions "of fact as to whether the release bars this action" ( Ford v Phillips , 121 AD3d at 1233; see Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V. , 17 NY3d at 276).

CPLR 3211(a)(5) permits dismissal based on a signed release when the plaintiff fails to raise a factual issue that would void it.

Prete v. Tamares Dev. 1, LLC · filed 2023-09-27(a)(5)

Here, in support of its motion to dismiss the complaint, the defendant submitted a release executed by the plaintiff, which, by its terms, barred the instant action against the defendant ( see Davis v Rochdale Vil., Inc. , 109 AD3d 867, 867). In opposition, the plaintiff failed to raise an issue of fact as to whether there had been fraud, duress, or some other circumstance which would be sufficient to void the release ( see id. at 867). ... Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

An unambiguous release can completely bar a complaint under CPLR 3211(a)(5), even if the plaintiff misunderstood its terms.

Rivera v. Kei · filed 2025-02-19(a)(5)

Here, the language of the release executed by the plaintiff was clear and unambiguous, and any misunderstanding by the plaintiff of the terms of the release is insufficient to avoid the consequences of the release ( see Koufakis v Siglag , 85 AD3d 872). Accordingly, the Supreme Court properly found that the release was a complete bar to the complaint insofar as asserted against the Shum defendants.

A facially insufficient cross claim may be dismissed with prejudice on a CPLR 3211(a)(7) motion.

Carter v. Farmington Sportservice, Inc. · filed 1996-11-08(a)(7)

Supreme Court should have granted the motion of Sysco and Norcal dismissing the cross claim of Farmington and dismissing the cross claim of Rich with prejudice. ... Because the cross claim of Rich is insufficient on its face, there is nothing to be gained by renewal of the motion.

Section 3211(a)(7) permits dismissal with prejudice of a pleaded cause of action only when it is clear that a material element does not exist.

Weigand v. University Hospital of New York University Medical Center · filed 1997-04-01(a)(7)

When plaintiff’s allegations, if taken as true, do allege a cause of action, dismissal with prejudice under CPLR 3211 (a) (7) is proper only when it is clear that a material element does not exist (see, Renel Constr. v Brooklyn Coop. Meat Distrib. Ctr., 59 AD2d 391, 396, affd 46 NY2d 859).

A dismissal for failure to state a cause of action under CPLR 3211(a)(7) is without prejudice.

Clark v. New York State Office of Parks, Recreation & Historic Preservation · filed 2001-11-09(a)(7)

Because no such notice was provided here, and the parties were not “deliberately charting a summary judgment course” (Village of Webster v Monroe County Water Auth., 269 AD2d 781, 783), the dismissal of the action must be premised upon the failure to state a cause of action pursuant to CPLR 3211 (a) (7), which results in a dismissal without prejudice (see, CPLR 205 [a]).

A dismissal under CPLR 3211 may be affirmed with prejudice when the plaintiff offers no proposed amended pleading that would remedy the complaint's defects.

Cernich v. Athene Holding Ltd. · filed 2020-07-02

Order, Supreme Court, New York County (Andrea Masley, J.), entered September 25, 2019, which granted defendant's motion pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss the complaint with prejudice, unanimously affirmed, with costs. ... Plaintiff's contention that the court erred in dismissing the complaint with prejudice is [*2]unsupported by a proposed amended pleading that would remedy the defects identified by the court.

CPLR 3211(a)(7) permits dismissal with prejudice when the circumstances show that a claim cannot be stated against the defendants.

Matter of Weinman v. New York State Dept. of Motor Vehs.Traffic Violations Bur. · filed 2022-03-23(a)(7)

Moreover, the Supreme Court properly granted that branch of the respondents' cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 for failure to state a cause action. ... Contrary to Weinman's contention, under such circumstances, dismissal with prejudice was proper ( see generally GMAC Mtge., LLC v Bisceglie , 109 AD3d 874, 876; Rosenfeld v Renika Pty. Ltd. , 84 AD3d 703, 703).

CPLR 3211(a)(7) permits dismissal with prejudice of an alleged custody-order violation that fails to state a viable claim.

Matter of Tomomi N. v. Michael G. · filed 2025-04-03(a)(7)

The petition describes only one incident on September 5, 2023 on which she says she was unable to visit the children and concedes that the father was not present on that occasion. As to that incident, the court properly dismissed the petition with prejudice (CPLR 3211[a][7]).

A denial of a motion to dismiss under CPLR 3211(a)(7) establishes that the complaint sufficiently alleges a claim, but does not establish the alleged facts for trial.

Greene v. City of New York · filed 1992-06-29(a)(7)

Rather, this court holds that any finding of the motion court as to a special relationship is limited only to a finding that plaintiff did make allegations thereof sufficient to defeat the city’s motion to dismiss the complaint.