N.Y. C.P.L.R. § 3211

An appeal from the denial of a CPLR 3211(a)(7) motion is moot when an amended complaint substantively alters the claim challenged by the motion.

Manshion Joho Center Co. v. Nomura Suzuki Properties, Ltd. · filed 2001-12-27(a)(7)

... their CPLR 3211 (a) (7) motion to dismiss plaintiff’s breach of contract claim is mooted by plaintiffs service of an amended complaint, pursuant to a subsequent order, that substantively altered its original one-page breach of contract claim with an eight-page claim alleging additional breaches of contract against additional parties.

A CPLR 3211(a) motion to dismiss for failure to state a cause of action does not bar a later motion for summary judgment.

Lyons v. Lyons · filed 2001-12-27(a)

Our review of that motion reveals that, in essence, it was a motion brought pursuant to CPLR 3211 (a) to dismiss for, inter alia, failure to state a cause of action which does not bar a subsequent motion for summary judgment (see, State of New York v Barclays Bank, 151 AD2d 19, affd 76 NY2d 533).

An amended complaint does not defeat a motion to dismiss as time-barred under CPLR 3211(a)(5), because that motion addresses the merits.

Livadiotakis v. Tzitzikalakis · filed 2003-02-03(a)(5)

The plaintiffs’ contention that the branch of the motion which was pursuant to CPLR 3211 (a) (5) was rendered academic by service of an amended complaint is without merit (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 251 AD2d 35, 38, revd on other grounds 91 NY2d 30; Baker v Reis, 223 App Div 842; Matter of DAddario v McNab, 73 Misc 2d 59, 61). It has long been the rule in this Judicial Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading (see Baker v Reis, supra; Matter of DAddario v McNab, supra). A motion to dismiss an action as time-barred is addressed to the merits (see Matter of Karmel v Delfino, 293 AD2d 473).

A ruling under CPLR 3211(a)(7) addresses whether the pleadings state a claim; it does not establish that the claim can be proved at trial.

Wagner Trading Co. v. Tony Walker Retail Management Co. · filed 2003-07-03(a)(7)

Although this Court previously affirmed that part of an order denying defendants’ pretrial motion to dismiss the cause of action for fraud pursuant to CPLR 3211 (a) (7) (Wagner Trading Co. v Walker Retail Mgt. Co., 277 AD2d 1012 [2000]), that motion was directed at the pleadings, whereas the order in appeal No. 1 granted defendants’ motion for a directed verdict dismissing that cause of action based on the evidence presented at trial.

A motion under CPLR 3211(a)(7) to dismiss the original complaint becomes academic when the plaintiff is granted leave to serve an amended complaint.

RCLA, LLC v. 50-09 Realty, LLC · filed 2008-02-13(a)(7)

Lastly, in light of our determination that the plaintiffs motion for leave to serve an amended complaint should have been granted, that branch of the defendants’ motion which was to dismiss the original complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) should have been denied as academic.

On a motion to dismiss, factual claims flatly contradicted by evidence are not presumed true; when the movant submits evidentiary material, the court determines whether the claimant has a cause of action.

Sweeney v. Sweeney · filed 2010-03-23(a)(1)

“It is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she has stated one”

A ruling sustaining a claim on a CPLR 3211(a)(7) motion does not bind the court on a later summary judgment motion.

Supreme Associates, LLC v. Suozzi · filed 2011-10-21(a)(7)

Lastly, while the Appellate Division previously sustained the plaintiffs’ equal protection theory in response to the County’s original CPLR 3211 (a) (7) motion, that holding is not binding with respect to a subsequently noticed application for summary judgment (see generally Thompson v Lamprecht Transp., 39 AD3d 846 [2007]; Mobarak v Mowad, 55 AD3d 693 [2008]).

A ruling that a complaint survives a motion to dismiss does not control the outcome once the facts are determined.

Feinberg v. Boros · filed 2012-09-11(a)(7)

It is axiomatic that a motion addressed to the face of a complaint, wherein the motion court must construe all facts in a light favorable to the plaintiff, cannot control the outcome of a case once the facts are finally determined, just as denial of a summary judgment motion on the grounds that the nonmovant has raised a triable issue of fact does not mean that the movant cannot prevail after the evidence has been considered by the trier of fact.

A prior denial of a CPLR 3211(a) motion does not under the law of the case doctrine preclude review of a later summary judgment motion.

Pentacon, LLC v. 422 Knickerbocker, LLC · filed 2018-10-10(a)

Contrary to the Supreme Court's conclusion, its prior denial of the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint did not, under the law of the case doctrine, preclude review of the defendants' current motion for summary judgment ( see Borawski v Abulafia , [*2]140 AD3d 817, 817-818; State of New York v Barclays Bank of N.Y. , 151 AD2d 19, 20-21).

Section 3211(a) permits a defendant to seek dismissal before answering; after an answer, a motion on grounds asserted in that answer should be treated as one for summary judgment under section 3212.

Deutsche Bank Natl. Trust Co. v. DeGiorgio · filed 2019-04-04(a)

Although defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a), defendants had filed an answer and, therefore, their cross motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in their answer ( see Sager v County of Sullivan , 145 AD3d 1175, 1175 n 1 [2016], lv denied 29 NY3d 902 [2017]).

Section 3211(f) extends the time to answer after a defendant serves a motion to dismiss, giving ten days after service of notice of entry of the order deciding the partial motion.

Levine v. Singal · filed 2019-05-02(a), (f)

Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it ( see Chagnon v Tyson , 11 AD3d 325 [1st Dept 2004]). ... Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).

A motion to dismiss extends the time to appear only if made before that time expires.

Nowakowski v. Broadway Stages · filed 2020-01-15(f)

Contrary to the contention of Broadway Stages and Combs, their motion to dismiss the action did not serve to extend their time to appear, as they did not move before their time to appear had expired ( see Lefkowitz v Kaye, Scholer, Fierman, Hays & Handler , 271 AD2d 576, 577).

A motion under CPLR 3211(a)(7) to dismiss a complaint is academic when the court grants leave to amend that complaint.

Milin v. Pak · filed 2020-12-16(a)(7)

In light of our determination that the branch of the plaintiff's cross motion which was for leave to amend the amended complaint should have been granted, those branches of the defendants' motions which were pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against each of them should have been denied as academic.

An earlier denial of a CPLR 3211(a)(5) motion as untimely does not bar a later summary judgment motion based on the statute of limitations.

Moody v. Hmoud · filed 2021-03-24(a)(5)

Contrary to the plaintiffs' contention, the Supreme Court's previous denial of the CRHC doctors' motion pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them on the ground that the motion was untimely did not bar the CRHC doctors from moving for summary judgment on the ground that the plaintiffs' claims were barred by the statute of limitations ( see Bennett v Hucke , 64 AD3d 529, 530; Bowes v Healy , 40 AD3d 566, 566; Diaz v DiGiulio , 29 AD3d 623, 623).

A pre-answer motion to dismiss under § 3211(a) extends the time to answer, allowing the petitioner to amend the petition as of right before an answer is filed.

Apple Bank v. Contemporary Dental Implants Scarsdale LLP · filed 2024-10-07(a)

Service of a new petition during the pendency of a pre-answer motion to dismiss is permitted as of right ( see Schwatka v Super Millwork , Inc. , 33 Misc 3d 1213[A] [Sup Ct, Suffolk County 2011], affd 106 AD3d 897 [2d Dept 2013] [explaining that CPLR 3211(a) extends the respondent's time to file an answer until after the motion is decided, thereby also extending the time for the petitioner to file one amended complaint, as of right, before the answer, per CPLR 3025]; see also Perez v Wegman Cos , 162 AD2d 959 [4th Dept 1990]).

After denying a CPLR 3211(a) motion, a court cannot dismiss the proceeding on the merits when issue has not been joined and the motion has not been converted to summary judgment.

Matter of 195 N. Vil. Ave., LLC v. 195 Apts., Inc. · filed 2024-12-04(a)

Moreover, under all the circumstances, including that issue had not been joined and that branch of the co-op's motion which pursuant to CPLR 3211(a) to dismiss the petition/complaint was not converted into a motion for summary judgment, there was no basis for the Supreme Court, in effect, to dismiss the proceeding/action after concluding that the co-op was not entitled to dismissal of the petition/complaint pursuant CPLR 3211(a) ( see generally Nonnon v City of New York , 9 NY3d 825, 827; cf. One Monroe, LLC v City of New York , 89 AD3d 812, 813).

A pre-answer motion to dismiss extends the defendant's time to answer under CPLR 3211(f), and that extension also applies to the period for seeking leave to depose the defendant under CPLR 3106(a).

Anderson v. Lubin · filed 2026-04-23(f)

Where, as here, defendants have filed a pre-answer motion to dismiss, extending their time to answer under CPLR 3211(f), the extension also applies to the period in CPLR 3106(a) (see Peralta v John Tara, Inc., 30 AD3d 256, 256 [1st Dept 2006]; Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3106:2.

A motion to dismiss served within an extension of time to respond prevents a defendant from defaulting.

Oparaji v. Yablon · filed 2017-06-01(a)

In this pro se action alleging fraud, conspiracy, conversion and defamation by defendants in connection with their legal representation of plaintiff Prince Oparaji in an underlying motor vehicle accident, defendants, by their service of a motion to dismiss the action, made within the time extension granted by the court, did not default, contrary to plaintiffs’ contentions (see generally CPLR 320 [a]; 2211, 3211 [a]; see also Urena v NYNEX, Inc., 223 AD2d 442 [1st Dept 1996]; Colbert v International Sec. Bur., 79 AD2d 448 [2d Dept 1981], lv denied 53 NY2d 608 [1981]).

CPLR 3211(a)(5) permits dismissal of a claim when the amount due has been paid.

Stone v. National Bank & Trust Company · filed 1992-12-17(a)(5)

Plaintiff received funds payable under the relevant three-year plan through that date and no further sums are due. Accordingly, plaintiffs fourth and fifth causes of action were properly dismissed pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal based on proof of payment when the plaintiff offers no evidence to refute it.

Rothman v. Baldari · filed 1997-04-07(a)(5)

The plaintiffs submitted no evidence to refute the defendant’s proof that the eighth loan had been repaid (see, CPLR 3211 [a] [5]). Therefore, the defendant’s motion to dismiss the complaint should have been granted.

Section 3211(a)(5) permits dismissal when documentary evidence establishes the defense of payment as a matter of law.

Ragins v. Hospitals Insurance · filed 2012-06-13(a)(5)

Further, a motion pursuant to CPLR 3211 (a) (5) may be granted where the documentary evidence establishes the defense of payment as a matter of law (see Stone v National Bank & Trust Co., 188 AD2d 865, 866-867 [1992]).

CPLR 3211(a)(5) permits dismissal when a settlement agreement establishes an affirmative defense of payment.

Leishman v. Schulman · filed 2021-01-07(a)(5)

The court properly granted defendant's motion to dismiss the complaint seeking to enforce a sister-state-judgment based on its finding that the December 22, 2016 letter agreement was a settlement agreement, drafted by plaintiff's then counsel, which provided an affirmative defense of payment under CPLR 3211(a)(5).

Section 3211 permits a preanswer motion challenging a plaintiff’s legal capacity to sue, and that motion extends the time to answer.

New England Log Homes, Inc. v. Moody · filed 1993-06-03(a)(3), (f)

This aspect of defendant’s motion was directed at plaintiff’s legal capacity to maintain the action (see, Continental Shows v Essex County Agric. Socy., 62 AD2d 1103) and, therefore, was properly a subject of a CPLR 3211 motion (see, CPLR 3211 [a] [3]), which has the effect of extending the time to answer (CPLR 3211 [f]).

A motion to dismiss served within the time to answer defeats a request for default based on failure to answer.

Glendora v. Kofalt · filed 1994-07-28(e)

The motion for default is denied as defendants’ motion to dismiss was served within the time to answer (see, CPLR 3211 [e]).

Serving a counterclaim waives the CPLR 3211(f) extension of time to answer while a motion to dismiss is pending.

Design Strategy Corp. v. Spicehandler · filed 2004-03-11(f)

It seems clear that by serving the counterclaim, defendant effectively waived the CPLR 3211(f) stay. It cannot serve part of a responsive pleading, a counterclaim, while at the same time seeking the benefit of the automatic stay as to the other part.

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

Matter of Park Knoll Owners, Inc. v. Park Knoll Assoc. · filed 2019-09-18(a)(3)

We agree with the Supreme Court's denial of that branch of PKA's motion which was pursuant to CPLR 3211(a)(3) to dismiss the proceeding. PKA failed to establish that certain alleged irregularities in connection with PKO's election of its board of directors rendered PKO without the capacity to commence this proceeding ( see Vasilatos v Dzamba , 148 AD3d 1275, 1276).

Under CPLR 3211(f), a defendant's time to answer does not begin until the plaintiff serves notice of entry of the decision on the motion.

Adago v. Sy · filed 2026-02-05(f)

This was in error as plaintiff never served Adago I with notice of entry and therefore defendants' time to answer never started running ( see CPLR 3211[f]).

Section 3211(e) permits only one motion to dismiss; that limit does not bar an alternative motion for summary judgment.

Delaney v. Relx, Inc. · filed 2025-04-10(e)

As a preliminary matter while plaintiff is correct that pursuant to CPLR § 3111(e), no more than one motion to dismiss shall be permitted, here defendants alternatively move for summary judgment pursuant to CPLR § 3212(h) 2. Accordingly, plaintiff’s motion for sanctions will be denied.

Section 3211(e) permits a motion under section 3211(a)(7) after a responsive pleading is required, and the single-motion rule does not bar a later motion when the prior motion was not decided on the merits.

2497 Realty Corp. v. Fuertes · filed 2024-11-14(e); (a)(7)

Contrary to plaintiff's claim, the Individual Defendants' motion did not violate the single motion rule ( see CPLR 3211[e]) because defendants' prior motion to dismiss was not decided on the merits ( Rivera v Board of Educ. of the City of N.Y., 82 AD3d 614, 614 [1st Dept 2011]). As for the fact that all defendants answered the amended complaint, CPLR 3211(e) says, "A motion based upon a ground specified in paragraph seven of subdivision (a) may be made at any time" after "service of the responsive pleading is required." Since the Individual Defendants made a CPLR 3211(a)(7) motion that was not converted into a summary judgment motion, the court should have relied on the amended complaint and plaintiff's initial affidavit in opposition to the motion ( see Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]; Tap Holdings, LLC v Orix Fin. Corp., 109 AD3d 167, 173-174 [1st Dept 2013]), instead of ordering discovery and supplemental submissions.

A CPLR 3211(a) motion denied without prejudice does not bar a subsequent motion to dismiss.

Tesciuba v. Koch · filed 1995-05-11(a)

As defendant’s prior CPLR 3211 (a) motion was expressly denied "without prejudice”, there was no bar to this subsequent motion.

CPLR 3211(e)'s single motion rule does not bar a second motion on the same grounds that supplies documentary evidence found missing on the first motion.

Ultramar Energy Ltd. v. Chase Manhattan Bank, N.A. · filed 1993-07-01(e)

We believe that the single motion rule has no application in the circumstances presented and that the matter is ripe for disposition by motion. ... The CPLR 3211 (a) (1) and (7) motion by defendant Chase Manhattan Bank, N.A. is neither repetitive nor based on an alternative ground. ... Chase merely took its cue and supplied the documentary evidence found missing on the first motion.

CPLR 3211(e)’s single motion rule bars a second motion to dismiss for failure to state a cause of action.

Teller v. Bill Hayes, Ltd. · filed 1995-08-21(e)

Insofar as the instant motion seeks to dismiss the cause of action to recover damages for negligence for failing to state a cause of action, it is a second CPLR 3211 (a) (7) motion which runs afoul of the single motion rule (CPLR 3211 [e]; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:55).

Section 3211’s single motion rule bars a second motion to dismiss causes of action that the defendant unsuccessfully challenged in an earlier motion, even after the complaint is amended.

B.S.L. One Owners Corp. v. Key International Manufacturing, Inc. · filed 1996-03-18(a)

Because the defendants’ previous challenge to the fraud and breach of fiduciary duty causes of action was denied, the defendants were barred by the "single motion rule” from challenging these causes of action in a second motion pursuant to CPLR 3211 (a) ... Therefore, the Supreme Court improperly granted those branches of the defendants’ application which were for leave to serve a motion to dismiss the first two causes of action.

CPLR 3211(e)'s single motion rule precludes a defendant who has already made a preanswer motion to dismiss from bringing a new motion to raise a statute of limitations defense.

Grosso Moving & Packing Co. v. Damens · filed 1996-11-07(e)

To the extent that that part of the motion as sought leave to "reargue” the Statute of Limitations, which was not raised in the previous motion, might be considered a new and unrelated motion, it is precluded by the single motion rule of CPLR 3211 (e), since defendant already made one preanswer motion to dismiss under CPLR 3211 (a) (see, Hertz Corp. v Luken, 126 AD2d 446, 448-449).

CPLR 3211’s one motion rule does not bar dismissal grounds first raised in reply when they respond to new facts in the plaintiff’s opposition and the plaintiff has an opportunity to respond.

Held v. Kaufman · filed 1997-04-28

The Supreme Court refused to consider the defendants’ contentions regarding the Statute of Frauds and the Statute of Limitations because these arguments had been raised for the first time in the defendants’ reply affirmation and because their tardy appearance would arguably violate the "one motion rule” of CPLR 3211. We disagree.

CPLR 3211(e)’s single motion rule does not bar a cross motion to dismiss when the defendant’s original motion to dismiss has been held in abeyance.

Curtis v. Chetrit · filed 1997-10-30(e)

We note that the granting of defendants’ cross motion was not a violation of the single motion rule (CPLR 3211 [e]) since defendants’ original motion to dismiss had been held in abeyance pending the outcome of the brokers’ action.

Section 3211(e)’s single-motion rule permits additional grounds for dismissal to be raised in a reply affidavit on a single preanswer motion.

Held v. Kaufman · filed 1998-04-07(e)

That additional grounds for dismissal were introduced in a reply affidavit on what was a single CPLR 3211 motion violates neither the letter nor the spirit of the single motion rule.

Section 3211(e)'s single motion rule permits a defendant to move to dismiss an amended complaint after moving to dismiss the original complaint.

Shelley v. Shelley · filed 1999-03-26(e)

Thus, it is clear that the single motion rule is no bar to a second dismissal motion where the complaint has been amended (see, supra).

CPLR 3211(e)'s single-motion rule can procedurally bar a motion to dismiss a complaint as time-barred.

Lee v. Liberty Lines Transit, Inc. · filed 1999-04-19(e)

The Supreme Court correctly determined that the instant motion is procedurally barred by the single-motion rule of CPLR 3211 (e) (see, Grosso Moving & Packing Co. v Damens, 233 AD2d 128).

A motion under CPLR 3211(b) does not count as a prior motion under CPLR 3211(e)’s one-motion rule for motions under CPLR 3211(a).

Ouyang v. Jeng · filed 1999-04-26(e)

Since the plaintiffs first motion to strike the defendant’s affirmative defense of lack of personal jurisdiction was made pursuant to CPLR 3211 (b), the plaintiffs cross motion to dismiss the first counterclaim under CPLR 3211 (a) (7) was the first and only motion made under CPLR 3211 (a).

CPLR 3211(e)’s single motion rule permits a dismissal ground to be raised in response to an amended petition or complaint even if it was omitted from the initial motion.

Sevenson Hotel Associates, Inc. v. Stranges · filed 1999-06-18(e)

We reject petitioners’ contention that, because the municipal respondents and Stranges did not raise the issue of exhaustion of administrative remedies in their initial motion papers, the subsequent assertion of that issue violates the “single motion rule” (see, CPLR 3211 [e]). The issue was properly raised in response to the amendment of the petition/complaint (see, Held v Kaufman, 91 NY2d 425, 430).

Section 3211(e)’s single motion rule treats resubmission of the same dismissal motion after reversal and a change of venue as one motion.

Montgomery v. Minarcin · filed 1999-07-08(e)

Defendants originally moved for dismissal in February 1996 in Supreme Court in Albany County; they resubmitted that same motion to that court in January 1998 after this Court reversed the dismissal — which had been premised solely upon the Statute of Limitations — and reinstated the complaint. Upon the granting of the change of venue, defendants resubmitted the motion a final time to Supreme Court in Warren County. There was but one CPLR 3211 (a) dismissal motion.

CPLR 3211(e)'s single motion rule does not bar a second motion directed to a different pleading.

LaMarca v. Pak-Mor Manufacturing Co. · filed 1999-11-12(e)

We reject plaintiffs contention that Pak-Mor previously moved to dismiss the complaint for lack of personal jurisdiction and thus that the subject motion is barred by the single motion rule set forth in CPLR 3211 (e). That rule does not apply where a second motion is directed to a different pleading (see, Nassau Roofing & Sheet Metal Co. v Celotex Corp., 74 AD2d 679, 680).

CPLR 3211(e)’s single motion rule does not bar a later summary judgment motion on a ground previously raised in a motion to dismiss.

Tapps of Nassau Supermarkets, Inc. v. Linden Boulevard, L.P. · filed 2000-02-24(e)

Tapps argues that Neuman was barred from, moving for dismissal due to the single motion rule of CPLR 3211 (e); however there is nothing which prevents a motion for summary judgment from being made on the same ground which had earlier been advanced in a motion to dismiss (Hertz Corp. v Luken, 126 AD2d 446, 448-449).

The single motion rule does not bar prompt refiling of a dismissal motion after an initial denial on procedural grounds for failure to attach the amended complaint.

767 Third Avenue LLC v. Greble & Finger, LLP · filed 2004-06-10(e)

The single motion rule (CPLR 3211 [e]) has no application where defendants promptly refiled their dismissal motion after initial denial on procedural grounds for failure to attach a copy of the amended complaint.

CPLR 3211(e) permits only one preanswer motion to dismiss and bars a successive motion seeking the same relief.

Klein v. Gutman · filed 2004-11-08(e)

CPLR 3211 (e) permits only one preanswer motion and precludes successive motions (see Held v Kaufman, 91 NY2d 425 [1998]; Miller v Schreyer, 257 AD2d 358 [1999]). Here, the third motion to dismiss made by Singer and Central violated both the letter and the spirit of the single motion rule articulated by CPLR 3211 (e).

CPLR 3211(e)’s single-motion rule bars a later motion to dismiss under subdivisions (a)(2) and (a)(3).

Nunez v. Mousouras · filed 2005-08-01(e)

The branch of the appellant’s motion pursuant to CPLR 3211 (a) (2) and (3) which was to dismiss the first cause of action was procedurally barred by the single-motion rule (see CPLR 3211 [e]; Lee v Liberty Lines Tr., 260 AD2d 549 [1999]; B.S.L. One Owners Corp. v Key Int. Mfg., 225 AD2d 643 [1996]).

Section 3211(e) generally permits only one preanswer motion to dismiss, subject to limited exceptions.

Ghee v. Washington Mutual Bank F.A. · filed 2006-08-21(e)

There are some limited exceptions to the general “single motion rule” for CPLR 3211 (a) motions, but the instant motion, as will be discussed, does not fall under any of these exceptions. The court has no choice but to dismiss the instant motion for its violation of CPLR 3211 (e) and the “single motion rule.”

CPLR 3211(e)’s single motion rule bars a renewed motion to dismiss when an amended complaint merely restates and renumbers existing causes of action.

Swift v. New York Medical College · filed 2008-02-19(e)

Contrary to the defendant’s contention, service of an amended complaint containing no new causes of action, but merely restating and renumbering 5 of the plaintiffs original 12 causes of action, did not provide the defendant with a basis for circumventing the single motion rule (see B.S.L. One Owners Corp. v Key Intl. Mfg., 225 AD2d 643 [1996]; CPLR 3211 [e]). Thus, the defendant’s motion should have been denied as procedurally barred.

Section 3211(e)’s single motion rule bars a second motion to dismiss for failure to state a cause of action, even though that ground may otherwise be raised at any time.

Ramos v. City of New York · filed 2008-05-13(e)

Accordingly, their motion, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7) should have been denied as procedurally barred by the single motion rule.

Section 3211(e)'s single motion rule does not bar a summary judgment motion when the defendants have not previously moved for summary judgment.

Consolidated Resources v. 210-220-230 Owner's Corp. · filed 2009-02-17(e)

That branch of the defendants’ motion which was for summary judgment was not barred by the single motion rule, and the law of the case doctrine does not apply, as the defendants never previously moved for summary judgment (see CPLR 3211 [e]; Ramos v City of New York, 51 AD3d 753, 754 [2008]; Santiago v Pyramid Crossgates Co., 294 AD2d 789, 790 [2002]; Tapps of Nassau Supermarkets v Linden Blvd., 269 AD2d 306, 307 [2000]).

CPLR 3211(e)'s single motion rule did not preclude a later motion to dismiss based on the alleged untimeliness of a notice of claim.

Kim L. v. Port Jervis City School District · filed 2009-04-21(e)

We further find on this record that the defendant was not precluded by the “single motion rule” from moving to dismiss the complaint based upon the alleged untimeliness of the notice of claim (see CPLR 3211 [e]; see generally Ramos v City of New York, 51 AD3d 753, 754 [2008]).

A motion denied as premature and not decided on the merits does not bar a later motion under CPLR 3211(e)’s single motion rule.

Rivera v. Board of Education · filed 2011-03-24(e)

Nor does the motion violate the single motion rule (see CPLR 3211 [e]), since the prior motion was not decided on the merits (see generally Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86 [1993]; compare Miller v Schreyer, 257 AD2d 358, 361 [1999] [“the issue to be decided is whether defendants are entitled to a second determination of the identical question”]).

Section 3211(e)’s single motion rule permits a renewed motion to dismiss when the first motion was denied without prejudice with leave to reconsider it after discovery.

Merrill Lynch Credit Corp. v. Smith · filed 2011-09-30(e)

Based on those circumstances, third-party defendant’s renewal of its motion to dismiss did not violate the single motion rule set forth in CFLR 3211 (e).

Section 3211(e)’s single motion rule does not bar a motion to dismiss a changed cause of action in an amended complaint.

Barbarito v. Zahavi · filed 2013-06-04(e)

Finally, the “single motion rule” (CPLR 3211 [e]) does not bar Seelig and MSF from moving to dismiss the amended complaint, as the fraud cause of action in the amended complaint is not the same as the corresponding cause of action in the original complaint.

Section 3211(e)’s single motion rule does not bar a motion to dismiss a claim first asserted in an amended complaint.

Kocourek v. Booz Allen Hamilton Inc. · filed 2014-02-20(e)

Finally, the “single motion rule” (CPLR 3211 [e]) does not bar defendants’ motion because the cause of action based on a written agreement, now asserted in the second amended complaint, was not set forth in plaintiffs prior complaints (see e.g. Barbarito v Zahavi, 107 AD3d 416, 420 [1st Dept 2013]).

Section 3211(e)’s single-motion rule bars a second CPLR 3211(a) motion, even when the second motion asserts failure to state a cause of action.

Oakley v. County of Nassau · filed 2015-04-15(e)

Accordingly, the Supreme Court should have denied the defendant’s motion as barred by the single-motion rule.

CPLR 3211(e)’s single motion rule does not bar a later summary judgment motion.

Kinberg v. Schwartzapfel, Novick, Truhowsky, Marcus, PC · filed 2016-02-04(e)

Defendant’s motion, properly treated as a motion for summary judgment (CPLR 3212 [b]), is not precluded by the “single motion” rule (CPLR 3211 [e]).

CPLR 3211(e)’s single motion rule bars a second motion to dismiss based on arguments the defendant had a full opportunity to raise in the first motion.

Landes v. Provident Realty Partners II, L.P. · filed 2016-03-31(e)

Given that defendants had the full opportunity to raise their current CPLR 3211 (a) arguments on their original CPLR 3211 (a) motion to dismiss, the IAS court correctly denied the motion as violative of the “single motion rule” of CPLR 3211 (e) (Barbarito v Zahavi, 107 AD3d 416, 420 [1st Dept 2013]).

Section 3211(e) generally bars a party from making a second motion to dismiss on grounds that were available in the first motion.

41st Rd. Props., LLC v. Wang Real Prop., LLC · filed 2018-08-01(e)

The Wang defendants' second motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that another action was pending was properly denied. As the Supreme Court observed, that motion violated the single-motion rule of CPLR 3211(e) ( see Oakley v County of Nassau, 127 AD3d 946, 946-947).

Section 3211(e)'s one-motion rule does not bar a later motion when the defendant's prior motion was not based on the merits of the complaint.

HSBC Bank USA v. Lugo · filed 2019-02-21(e)

Defendant's motion did not violate the one-motion rule of CPLR 3211(e) because her prior motion was not based on the merits of the complaint ( see Rivera v Board of Educ. of the City of N.Y. , 82 AD3d 614 [1st Dept 2011]).

CPLR 3211(e)'s single motion rule is not violated when a motion is converted to summary judgment and consolidated with another party's first motion.

Twenty 6 Realty Partners Inc. v. GSS N3 LLC · filed 2021-03-09(e)

GSS/KG's motion did not violate the single motion rule (CPLR 3211[e]). It was converted to a motion for summary judgment and was, at the request of Realty, consolidated with a first-time motion by plaintiffs-respondents.

Section 3211(e)'s single motion rule bars a second motion to dismiss the same claims on statute of limitations grounds.

Simon v. FrancInvest, S.A. · filed 2021-03-23(e)

Applying these principles, we hold that the arguments relating to the application of the statute of limitations are barred by the single motion rule ( see Landes v Provident Realty Partners II, L.P., 137 AD3d 694 [1st Dept 2016]). Defendants-appellants previously moved to dismiss the fourth and fifth causes of action in the SAC, which are the exact same fourth and fifth causes of action asserted in the TAC. This is a violation of the single motion rule.

Under the circumstances of this case, CPLR 3211(e)'s single-motion rule and waiver did not bar a later motion under CPLR 3211(a)(3).

Joseph v. Rassi · filed 2021-09-15(e)

Under the particular circumstances of this case, the Supreme Court should not have denied dismissal pursuant to CPLR 3211(a)(3) based upon the single-motion rule of CPLR 3211(e) and waiver ( see Gedula 26, LLC v Lightstone Acquisitions III LLC , 150 AD3d 583, 583; Barbarito v Zahavi , 107 AD3d 416, 420).

Section 3211(e)'s single motion rule does not bar a later motion when the earlier motion was not argued on the merits and was denied without prejudice to renew.

Sampson v. Roberts · filed 2023-01-24(e)

Defendants' motion to dismiss the complaint did not violate the single motion rule or the law of the case doctrine, as defendant Roberts's prior pro se motion to dismiss was not argued on the merits and was denied without prejudice to renew (see CPLR 3211[e]; Rivera v Board of Educ. of the City of N.Y. , 82 AD3d 614, 614 [1st Dept 2011]).

CPLR 3211(e)’s single motion rule permits a party to make another pre-answer motion to dismiss after withdrawing its first one.

Dragons 516 Ltd. v. Knights Genesis Inv. Ltd. · filed 2023-06-05(e)

The instant motion does not violate the single motion rule (CPLR 3211 [e]). Mr. Lonuzzi withdrew the prior motion to dismiss with regard to SMI and SMI Assets and, once a pre-answer motion is withdrawn, CPLR 3211 (e) contains no prohibition against the same party [*4]subsequently moving for the same relief ( Klein v Gutman , 12 AD3d 417, 418 [2d Dept 2004]; see also Greenfield v Philles Records , 160 AD2d 458, 459 [1st Dept 1990] [finding that a second motion to dismiss was properly denied pursuant to CPLR 3211 (e), where, among other things, the first "motion was never formally or informally withdrawn"]).

Section 3211(e)'s single motion rule bars a second motion to dismiss an amended counterclaim that is identical to one the movant previously challenged.

dMY Sponsor, LLC v. Glatt · filed 2023-06-06(e)

Here, counterclaim defendants' arguments regarding the third amended counterclaim are barred by the single motion rule, as the third amended counterclaim is exactly the same as the original counterclaim for fraudulent misrepresentation ( see Simon v FrancInvest, S.A. , 192 AD3d 565, 567 [1st Dept 2021], appeal dismissed 37 NY2d 1005 [2021] [single motion rule barred motion to dismiss causes of action in third amended complaint where defendants previously moved to dismiss exact same causes of action in second amended complaint]; Landes v Provident Realty Partners II, L.P. , 137 AD3d 694, 694 [1st Dept 2016] [court correctly denied motion to dismiss where "defendants had the full opportunity to raise their current CPLR 3211 (a) arguments on their original CPLR 3211 (a) motion to dismiss"]; cf. Barbarito v Zahavi , 107 AD3d 416, 420 [1st Dept 2013] ["single motion rule" did not bar motion to dismiss amended complaint where the fraud claim was "not the same as the corresponding cause of action in the original complaint"]).

CPLR 3211(e)'s single motion rule applies to pre-answer motions to dismiss.

Newlands Asset Holding Trust v. Vasquez · filed 2023-07-26(e)

Thus, by the plain language of CPLR 3211(e), the "single motion rule" applies to pre-answer motions to dismiss ( see id. ; Bailey v Peerstate Equity Fund, L.P. , 126 AD3d 738, 739; see also Lefkowitz v Kaye, Scholer, Fierman, Hays & Handler , 271 AD2d 576, 577).

CPLR 3211(e)’s single-motion rule does not bar a defendant’s first motion to dismiss in an action.

U.S. Bank N.A. v. DLJ Mtge. Capital, Inc. · filed 2023-12-30(e)

Second, Defendants' motion based on paragraph 4 of Section 7.04 is not barred by CPLR 321 l(e)'s "single motion" rule or principles of waiver as these are Defendant's first motions to dismiss in the 2015 and 2019 Actions (Mark-Holli Realty, Inc. v New York City Loft Bd., 205 AD2d 315,315 [!81 Dept 1994]).

Section 3211(e) permits a motion to dismiss an amended complaint when an earlier motion to dismiss the original complaint was denied as moot rather than decided on the merits.

Hines v. City of New York · filed 2024-03-12(e)

Since the denial of Defendant City's June 14, 2023 motion to dismiss the complaint was grounded in mootness rather than on the merits, the current motion to dismiss the amended complaint does not contravene the single motion rule.

CPLR 3211(e) permits a party only one motion to dismiss on grounds listed in subdivision (a).

TRB Acquisitions LLC v. Yedid · filed 2024-03-19(e)

Supreme Court should have denied the motion to dismiss as violative of the single motion rule, "which permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211 (a)" ( Ouyang v Jeng , 260 AD2d 618, 619 [2d Dept 1999]; see CPLR 3211 [e] ["a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted"]; see also Simon v FrancInvest, S.A , 192 AD3d 565, 566-567 [1st Dept 2021], appeal dismissed 37 NY3d 1005 [2021]).

CPLR 3211(e) governs the single-motion rule, and CPLR 3211(f) extends the defendant’s time to answer after service of a pre-answer motion to dismiss.

Eaton v. Bluestone · filed 2024-04-10(e), (f)

Contrary to the plaintiffs' contention, under the particular circumstances of this case, Bluestone's motion pursuant to CPLR 3211(a)(1), (3), and (7) to dismiss the complaint did not violate the single-motion rule of CPLR 3211(e) ( see Joseph v Rassi , 197 AD3d 1156, 1159). Pursuant to CPLR 3211(f), service of Bluestone's pre-answer motion to dismiss the complaint extended Bluestone's time to answer the complaint until 10 days after service of notice of entry of the order determining the motion ( see Rosas v Petkovich , 218 AD3d 814, 816).

Section 3211(e) generally permits one pre-answer motion to dismiss on grounds in subdivision (a), with exceptions for matters such as claims alleged later or motions not decided on their merits.

Jackson v. Wang · filed 2024-04-26(e)

Plaintiffs' contention that the instant motion is barred by the single motion rule does not hold. Plaintiffs have continually modified their claims in response to defendants' successive motions, demonstrating an adaptive approach aimed at fortifying their allegations and making themselves impervious to dismissal. CPLR 321 l(e) provides, in pertinent part, that "At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted." Exceptions exist, however, such as when a prior motion was not decided on its merits. Successive motions are allowed when new claims are alleged later, as here. Barbarito v Zahavi, 107 AD3d 416, 420 (1st Dept 2013) ("Because [defendants] did not have the opportunity to address the merits of the original cause of action, the single motion rule does not apply.")

Section 3211(e)'s single motion rule applies only to motions to dismiss, not to motions for summary judgment, even when they assert similar grounds.

Massoumi v. Ganju · filed 2024-05-14(e)

Contrary to plaintiff's assertion, the instant CPLR 3212 motion is not barred by the single motion rule of CPLR 3211(e), which only applies to motions to dismiss and not to motions for summary judgment, even when the CPLR 3212 motion asserts similar grounds ( see Tapps of Nassau Supermarkets v Linden Blvd. , 269 AD2d 306, 307 [1st Dept 2000]).

Section 3211(e) permits only one motion to dismiss on one or more subdivision (a) grounds before the responsive pleading is due.

McGuigan v. Gendell · filed 2024-07-08(e)

CPLR 3211(e) provides, in relevant part, that “[a]t any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted.” ... To the extent Plaintiffs’ motion challenges the first through fourth Second Amended Counterclaims that survived Plaintiff’s first motion to dismiss, including the Counterclaim for defamation, the motion is barred by CPLR 3211(e)’s single motion rule because the counterclaims are identical (TRB Acquisitions LLC v Yedid, 225 AD3d 508 [1st Dept 2024] [citations omitted]).

Section 3211(e)'s single motion rule applies to motions to dismiss and does not bar a later motion for summary judgment.

Le Premier Condominium v. Fleischman · filed 2024-08-30(e)

Contrary to the Petitioner's contention, the Respondent's instant motion for summary judgment pursuant to CPLR §3212 does not violate the single motion rule of CPLR §3211 (e) which is only applicable to motions to dismiss pursuant to CPLR §3211 nor impacts waiver issues .

CPLR 3211(e)'s one motion rule does not bar a defendant's first motion to dismiss the complaint.

Umeh v. New York City Health & Hosps. Corp. · filed 2024-09-24(e)

Friedman and Outon's motion to dismiss was not barred by the one motion rule of CPLR 3211(e), as this was their first motion to dismiss the complaint.

Section 3211(e) permits a party only one motion to dismiss on grounds listed in section 3211(a).

Eustache v. Board of Educ. of the City Sch. Dist. of the City of New York · filed 2025-03-27(e)

To the extent LaFia sought dismissal under CPLR 3211(a), Supreme Court properly denied the motion as barred by the single motion rule, which "permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211(a)" ( TRB Acquisitions LLC v Yedid , 225 AD3d 508, 508 [1st Dept 2024]; see CPLR 3211[e]).

CPLR 3211(a) permits a party only one motion to dismiss on one or more of its enumerated grounds.

167 E 99 LLC v. Latty · filed 2025-04-21(a)

Civil Court properly denied tenant's second motion to dismiss landlord's failure to provide access claim as violative of the single motion rule, which permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211(a) ( see TRB Acquisitions LLC v Yedid , 225 AD3d 508 [2024]).

CPLR 3211(e)'s single motion rule bars a later motion to dismiss a claim in the original complaint, but does not bar a motion directed at claims first added in an amended complaint.

Aerogen LLC v. Tapjets Holdings Inc. · filed 2025-05-15(e)

Because the sixth cause of action was in the original complaint, a motion to dismiss that claim would be barred by the single motion rule ( see CPLR 3211[e]). However, a motion to dismiss the seventh and eighth causes of action, which were not in the original complaint, would not be barred by CPLR 3211(e) ( see Barbarito v Zahavi, 107 AD3d 416, 420 [1st Dept 2013]).

Section 3211(e)'s single motion rule does not apply to postanswer motions, even when they invoke section 3211(a) grounds.

Viscuso v. State of New York · filed 2025-05-22(e)

Given that the motions here were postanswer, albeit on CPLR 3211 (a) grounds, the single motion rule contained in CPLR 3211 (e) does not apply ( see Newlands Asset Holding Trust v Vasquez , 218 AD3d 786, 787-788 [2d Dept 2023]; see generally Held v Kaufman , 91 NY2d 425, 430 [1998]).

The single motion rule permits a defendant to move to dismiss a new claim added in an amended complaint despite an earlier motion to dismiss.

Zaiger LLC v. Bucher Law PLLC · filed 2025-05-29(e)

The single motion rule does not bar Bucher Law from moving to dismiss the new claim asserted in the amended complaint ( see Barbarito v Zahavi , 107 AD3d 416, 420 [1st Dept 2013]).

Section 3211(e)'s single motion rule does not bar a motion to dismiss when the party's earlier motion was for summary judgment under CPLR 3212.

Duino v. CEM W. Vil., Inc. · filed 2025-12-09(e)

As an initial matter, the instant motion, denominated by CEM as one to dismiss, is not violative of the single motion rule (CPLR § 3211 [e]). The single motion rule permits a party to move only once upon one or more grounds enumerated under CPLR 3211 [a] (TRB Acquisition LLC v Yedid, 225 AD3d 508 [1 st Dept 2024]). Since CEM's early cross-motion was for summary judgment pursuant to CPLR § 3212, this is the first time CEM is moving to dismiss plaintiff's seconded amended complaint pursuant to CPLR § 3211 [a].

CPLR 3211(e) bars a second motion to dismiss the same pleading on alternative grounds.

Bremner v. Bush · filed 2025-12-24(e)

Here, the defendant violated the single motion rule of CPLR 3211(e) when she moved, among other things, pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint and then made a subsequent motion, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted by Lucid Studios, LLC, on alternative grounds.

Section 3211(e)'s single motion rule bars a second motion to dismiss based on a ground that could have been raised in the initial motion.

East Main 72, LLC v. Children of Am., Inc. · filed 2026-04-15(e)

The defendant's second motion pursuant to CPLR 3211(a)(8) to dismiss the complaint, based on lack of personal jurisdiction pursuant to CPLR 302(a)(1), was also properly denied, as violative of the single motion rule, as this argument could have been raised in the defendant's initial motion (see id. § 3211[e]; TRB Acquisitions LLC v Yedid, 225 AD3d 508; 41st Rd. Props., LLC v Wang Real Prop., LLC, 164 AD3d 455, 459).

CPLR 3211(e)'s single-motion rule applies to motions to dismiss and does not bar a later motion for summary judgment.

Suero v. Citibank, N.A. · filed 2026-05-20(e)

Moreover, the instant CPLR 3212 motion is not barred by the single motion rule of CPLR 3211 (e), "which only applies to motions to dismiss and not to motions for summary judgment" (Massoumi v Ganju, 227 AD3d 504, 504 [2024], lv denied 42 NY3d 910 [2024]).

A court improvidently exercises its discretion under Section 3211(a)(4) when it dismisses a complaint because another action remains pending without any party requesting that relief.

Frederick v. Meighan · filed 2010-07-13(a)(4)

At the outset, we find that the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint insofar as asserted against the Meighan defendants pursuant to CPLR 3211 (a) (4) in view of the continued pendency of the first legal malpractice action against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d 979, 980 [2009]; Frankel v Stavsky, 40 AD3d 918, 919 [2007]).

Under CPLR 3211(a)(7), a court may dismiss a complaint without a defendant’s motion when no corrective pleading could save the cause of action.

Moran v. Travelers Insurance · filed 1993-10-01(a)(7)

Supreme Court properly dismissed the complaint pursuant to CPLR 3211 (a) (7), inasmuch as there exists no independent cause of action for punitive damages (see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 126 AD2d 153, 156, lv dismissed 69 NY2d 1038; Holoness Realty Corp. v New York Prop. Ins. Underwriting Assn., 75 AD2d 569, 570; Knibbs v Wagner, 14 AD2d 987). Because no corrective pleading would save plaintiffs’ cause of action, the court properly dismissed their complaint, even in the absence of a motion by defendant (see, Planned Consumer Mktg. v Coats & Clark, 127 AD2d 355, 369, affd 71 NY2d 442).

Section 3211(a) does not authorize a court to dismiss claims against defendants who have not moved to dismiss.

Larke v. Moore · filed 2017-05-05(a)

We therefore modify the amended order accordingly. “[I]n the absence of a CPLR 3211 (a) motion by [RLIC and VOYA], the court was without authority to search the record and dismiss any claims against [them]”

Under CPLR 3211(a), a court cannot search the record and dismiss claims against defendants who have not moved to dismiss.

LARKE, III, JIMMIE v. MOORE, TINA MCCARY · filed 2017-05-05(a)

“[I]n the absence of a CPLR 3211 (a) motion by [RLIC and VOYA], the court was without authority to search the record and dismiss any claims against [them]” (Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1263; see Mann v Rusk, 14 AD3d 909, 910; see also Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901, 902).

CPLR 3211(a)(4) cannot be invoked sua sponte to dismiss claims when the plaintiff has no opportunity to respond and is substantially prejudiced.

Ringel v. Ringel · filed 2023-09-28(a)(4)

The remaining bases for the court's dismissal of the claims — CPLR 3211(a)(4) and claim splitting — were improperly invoked by the court sua sponte, which "substantially prejudiced plaintiff, who had no opportunity to respond" ( Martin v Grenadier Realty Corp., 260 AD2d 276, 277 [1st Dept 1999]).

Section 3211(a)(11) requires a plaintiff suing an uncompensated nonprofit director to show a reasonable probability of gross negligence or intent to cause the resulting harm to avoid dismissal.

Brown v. Albany Citizens Council on Alcoholism, Inc. · filed 1993-12-30(a)(11)

As for Gray, plaintiff has made an adequate evidentiary showing that she made accusations of mismanagement of funds and fraudulent conduct without conducting any investigation, presenting any proof or informing those present at the meetings of the basis for her accusations, thereby sufficiently demonstrating gross negligence and an intent to cause plaintiff’s termination.

A plaintiff opposing a motion under CPLR 3211(a)(11) must present proof showing a fair likelihood that an uncompensated nonprofit director acted with gross negligence or intent to cause harm.

Krackeler Scientific, Inc. v. Ordway Research Institute, Inc. · filed 2012-07-26(a)(11)

Unlike the low threshold for defeating a motion to dismiss under other provisions of CPLR 3211 (see e.g. ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 227 [2011]), a plaintiff faced with a motion pursuant to CPLR 3211 (a) (11) should lay bare proof supporting the alleged grossly negligent or intentional conduct and “[t]he mere possibility that such proof can develop does not suffice to keep the case alive” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:34a at 55).

Under subdivision (a)(11), dismissal based on N-PCL 720-a immunity requires a finding that the defendant qualifies for the immunity and that the alleged conduct has no reasonable probability of constituting gross negligence or intentional harm.

Kamchi v. Weissman · filed 2014-12-31(a)(11)

Only if the court finds that the defendant is entitled to the benefits of N-PCL 720-a immunity, and finds that there is no reasonable probability of gross negligence or intentional harm, will the defendant be entitled to dismissal of the causes of action asserted against that defendant (see CPLR 3211 [a] [11]).

Section 3211(a)(10) permits dismissal when the court should not proceed without a person who should be a party.

Swezey v. Lynch · filed 2011-06-16(a)(10)

Under CPLR 3211 (a) (10), a motion to dismiss may be made on the ground that “the court should not proceed in the absence of a person who should be a party.”

Section 3211(a)(10) places the burden on a party seeking dismissal for nonjoinder to show that the absent person is a necessary party.

Stanford Realty Assoc. v. Rollins · filed 1994-06-28(a)(10)

Rather, in seeking dismissal for failure to join his wife, respondent has the burden of showing that the circumstances of his wife’s occupancy are such that she is a necessary party in whose absence "the court should not proceed.” (See, CPLR 3211 [a] [10].)

Section 3211(a)(10) does not require dismissal of a respondeat superior action against a county for failure to join the employees whose conduct allegedly caused the injury.

Rock v. County of Suffolk · filed 1995-02-14(a)(10)

The County’s motion to dismiss the action pursuant to CPLR 3211 (a) (10) and 1001 should therefore have been denied.

Section 3211(a)(10) permits dismissal rather than joinder when a necessary party cannot be added.

Baker v. Town of Roxbury · filed 1995-10-26(a)(10)

To the extent that petitioners contend that joinder, not dismissal, is the appropriate remedy here, we disagree.

Section 3211(a)(10) makes dismissal for failure to join parties a last resort when the absent parties will not be inequitably affected.

Blank v. Blank · filed 1995-12-14(a)(10)

Defendants further contend that the complaint in action No. 1 should be dismissed pursuant to CPLR 3211 (a) (10) due to plaintiffs failure to name as parties the various corporations and partnerships through which Blank Family Partnership acted. Aside from the fact that dismissal under this section is a matter of last resort (Siegel, NY Prac § 268, at 397 [2d ed]), Supreme Court’s denial of this motion was appropriate as it does not appear at this point that the unnamed entities will be inequitably affected by this action since plaintiff is only seeking an accounting and trying to wind up the affairs of Blank Family Partnership, which should not involve the organizational structure of the other entities.

CPLR 3211(a)(10) permits dismissal for failure to join a necessary party.

Bernier v. New York State Department of Correctional Services · filed 2000-07-13(a)(10)

Since the City Commissioner is the official required to act and who also maintains the records which would reflect which jurisdiction first arrested petitioner and whether there was a waiver of primary jurisdiction, this official is a necessary party and failure to join him results in dismissal (see, CPLR 3211 [a] [10]; see, e.g., Matter of Brooks v Dalsheim, 103 AD2d 986).

Section 3211(a)(10) permits dismissal for failure to join necessary parties.

Ogbunugafor v. New York State Education Department · filed 2001-01-11(a)(10)

Initially and foremost, petitioner’s failure to join as parties to this special proceeding both the District (see, Paynter v State of New York, 270 AD2d 819) and the person appointed to the social studies teaching position who would have been displaced if petitioner prevailed and were appointed — or his successor— (see, Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 AD2d 715, ajfd 78 NY2d 935) warranted dismissal of her petition in its entirety for failure to join necessary parties (see, CPLR 1001 [a]; CPLR 3211 [a] [10]).

Section 3211(a)(10) permits dismissal for failure to join necessary parties.

Spence v. Cahill · filed 2002-12-30(a)(10)

Supreme Court properly granted respondent’s motion to dismiss the petition for failure to join necessary parties (see CPLR 3211 [a] [10]).

Section 3211(a)(10) permits dismissal when a necessary party has not been joined.

Roach v. Mamakos · filed 2003-06-19(a)(10)

Plaintiff’s failure to name Pamela Mamakos as a necessary party to this cause of action for necessaries is fatal to the action (CPLR 3211 [a] [10]; Albert C. v Joan C., 110 AD2d 803 [1985]).

CPLR 3211(a)(10) permits dismissal of a petition when an indispensable party has not been joined.

Green v. Bellini · filed 2004-11-19(a)(10)

We thus conclude that McNair is a person in whose absence the court should not proceed, and we dismiss the petition (see CPLR 3211 [a] [10]).

Under CPLR 3211(a)(10), failure to join a necessary party does not require dismissal if the absent party is not indispensable.

Glass v. Estate of Gold · filed 2008-02-26(a)(10)

The Supreme Court properly denied the appellant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (10) for failure to join a necessary party, namely, Lorraine Bowen, the deceased mortgagor’s daughter.

Section 3211(a)(10) does not warrant dismissal for failure to join school districts and a county when the petitioners seek no relief against them and their rights would not be adversely affected.

Pettersen v. Town of Fort Ann · filed 2008-12-11(a)(10)

Here, petitioners could have chosen to name the school districts and the county and to request relief against them relative to taxes levied by those parties upon assessments the petitioners may eventually be successful in attacking. While good practice may have dictated they do so, that they chose otherwise will not ascribe prejudice to those parties so as to cause the dismissal of the proceeding for failing to name (and serve) them as parties.

On a motion to dismiss for failure to join a necessary party, the plaintiff may be given an opportunity to join that party.

Crummell v. Avis Rent A Car System, Inc. · filed 2009-05-19(a)(10)

While the Supreme Court correctly concluded that Thomas Pinkerton is a necessary party to this action (see CPLR 1001 [a]; cf. Bello v Employees Motor Corp., 240 AD2d 527 [1997]), under the circumstances presented, the plaintiff should have been given an opportunity to rectify his failure to join him (see Stevens v Eaton, 267 AD2d 450, 450-451 [1999]).

CPLR 3211(a)(10) permits dismissal of a complaint for failure to join a necessary party.

Allsafe Technologies, Inc. v. Benz · filed 2010-06-11(a)(10)

We nevertheless conclude that the court erred in denying defendant’s motion insofar as it sought to dismiss the complaint on the ground that plaintiff failed to join a necessary party, i.e., Digital Card Systems, Inc. (see CPLR 3211 [a] [10]; Matter of Spence v Cahill, 300 AD2d 992 [2002], lv denied 1 NY3d 508 [2004]).

CPLR 3211(a)(10) permits dismissal when a necessary party has not been joined.

Kirton v. Dickerson · filed 2011-12-07(a)(10)

As such, the Board of Education is a necessary party. The failure to name the Board of Education as a party to this action results in the action being dismissed pursuant to CPLR 3211 (a) (10).

CPLR 3211(a)(10) does not require dismissal for failure to join an insurer when the insured retains the right to sue the tortfeasor after receiving uninsured motorist benefits.

Fletcher v. Rodriguez · filed 2015-02-02(a)(10)

There is no merit in defendant’s argument that USAA is a necessary party to this action because plaintiff surrendered all of her rights to sue defendant by accepting uninsured motorist payments from USAA. The release given by plaintiff shows an intent to allow plaintiff to bring an action in her own right against the tortfeasor (to wit: “whether obtained as a result of action requested by the Company or not”).

In a mortgage foreclosure action, failure to join a necessary party calls for directing joinder rather than dismissing the action on a properly named party’s motion.

Central Mortgage Co. v. Davis · filed 2017-04-19(a)(10)

Accordingly, even if the plaintiff had not properly served Sikora, the proper remedy for nonjoin-der in such a case would be to direct that the party be joined as a defendant, not “to dismiss the action upon the motion of the party who was properly named” (Dime Sav. Bank of N.Y. v Johneas, 172 AD2d at 1083).

Section 3211(a)(10) permits dismissal for failure to join a necessary party, but the court should order that party summoned when it is subject to the court's jurisdiction.

Deutsche Bank Natl. Trust Co. v. Bandalos · filed 2019-06-26(a)(10)

"A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the court should not proceed in the absence of a person who should be a party" (CPLR 3211[a][10]). However, CPLR 1001(b) provides that where the party "is subject to the jurisdiction of the court, the court shall order him [or her] summoned." Mother of Pearl, as the record owner of the property, is a necessary party to this action ( see CPLR 1001[a]; RPAPL 1311[1]) subject to the jurisdiction of the court. Consequently, the court should have ordered Mother of Pearl summoned, rather than granting that branch of the mortgagors' cross motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against them ( see CPLR 1001[b]; Windy Ridge Farm v. Assessor of Town of Shandaken , 11 NY3d 725, 727; Matter of Germain v Town of Chester Planning Board , 156 AD3d 633).

Section 3211(a)(10) does not require dismissal for failure to join a necessary party when the court can order that party joined.

U.S. Bank Trust, N.A. v. Gedeon · filed 2020-03-11(a)(10)

However, the Supreme Court should have denied that branch of Sylvanie's motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against her for failure to join the estate of Joseph E. Gedeon as a defendant. "When a [necesssary party] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned" (CPLR 1001[b]).

A motion under CPLR 3211(a)(10) to dismiss a mortgage foreclosure action for failure to join a borrower fails when the borrower conveyed his entire interest in the property and the lender waived a deficiency judgment against him.

Nationstar Mtge., LLC v. Foltishen Inst. · filed 2021-11-24(a)(10)

Here, CitiMortgage demonstrated that Twersky was not a necessary party to the action, as he had conveyed his entire interest in the mortgaged premises to Foltishen, and CitiMortgage waived its right to seek a deficiency judgment against him ( see DLJ Mtge. v 44 Brushy Neck, Ltd. , 51 AD3d 857). Accordingly, under the circumstances of this case, the Supreme Court properly denied that branch of Foltishen's motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against it for failure to join Twersky as a necessary party.

CPLR 3211 permits dismissal for lack of standing or capacity and failure to join a necessary party, with defenses waived when not timely raised.

Rimberg v. Horowitz · filed 2022-06-15(a)(3), (e), and (a)(10)

To the extent the defendant argues that the plaintiff lacks standing or the capacity to sue, the defendant waived that affirmative defense ( see CPLR 3211[a][3]) by failing to raise it in a pre-answer motion to dismiss or assert it in his answer ( see id. § 3211[e]; Castaldi v Syosset Cent. Sch. Dist. , 203 AD3d at 691-692). Also, while the defendant's answer included the affirmative defense of failure to join a necessary party, the defendant failed to demonstrate that the alleged necessary party needed to be a party if complete relief was to be accorded between the parties or that the alleged necessary party would be inequitably affected by a judgment in this action if it were not joined ( see CPLR 3211[a][10]; 1001[a]; Blatt v Johar , 177 AD3d 634, 636; Halliwell v Gordon , 61 AD3d 932, 935).

Section 3211(a)(10) does not warrant dismissal for failure to join an estate that is not a necessary party to the foreclosure action.

Bank of N.Y. Mellon v. Rose · filed 2022-11-16(a)(10)

The Supreme Court properly denied Anthony Rose's cross motion pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against him for failure to join the estate as a necessary party. ... Under the instant circumstances, the estate was not a necessary party to this mortgage foreclosure action, since, "'[g]enerally, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator's death and not at the time of probate'" ( US Bank Trust, N.A. v Gaines , 189 AD3d 1312, 1313, quoting Matter of Raccioppi , 128 AD3d 838, 840).

CPLR 3211(a)(10) does not require dismissal of a foreclosure complaint when a necessary party is absent; the judgment and sale leave that party’s rights unaffected.

Nationstar Mtge., LLC v. Weston · filed 2023-07-26(a)(10)

The Supreme Court properly denied that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against the other defendants in the action. Contrary to the defendant's contention, while the complaint was properly dismissed insofar as asserted against him for lack of personal jurisdiction, the absence of a necessary party in a foreclosure action does not require dismissal of the complaint, but rather "leaves that party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party" ( 1426 46 St., LLC v Klein , 60 AD3d 740, 742; see Private Capital Group, LLC v Hosseinipour , 86 AD3d 554; Glass v Estate of Gold , 48 AD3d 746; 12 Bergman on New York Mortgage Foreclosures § 12.02 [November 2022]).

CPLR 3211(a)(10) does not warrant dismissal for failure to join a necessary party subject to the court’s jurisdiction; the court must order joinder, even if the limitations period has lapsed.

Matter of Cheng v. State of New York Div. of Hous. & Community Renewal Off. of Rent Admin. · filed 2024-03-29(a)(10)

The landlords move pursuant to CPLR 1012(a) for leave to intervene in the instant proceeding, and thereupon pursuant to CPLR 3211(a)(10) to dismiss the petition herein for failure to join them as necessary parties (MOT SEQ 003). ... Dismissal, however, is not warranted. Where a necessary party has not been joined, the court may not dismiss the matter for failure to join a necessary party, even where the applicable limitations period has lapsed.

CPLR 3211(a)(10) permits dismissal when a person who should be joined as a party has not been joined.

Board of Directors for Kings Oak Terrace Coop. Apts. Inc. v. Bersh · filed 2024-08-12(a)(10)

A necessary party is one who must be named in a proceeding in order for "complete relief to be accorded between the persons who are parties in the action . . . ." (CPLR 1001 [a].) ... Accordingly, it is hereby ORDERED that for the forgoing reasons, respondent's motion is GRANTED, and the proceeding is hereby dismissed without prejudice. This constitutes the Decision and Order of this Court.

CPLR 3211(a)(10) does not require dismissal for failure to join a sovereign nation when the nation is not an indispensable party under CPLR 1001(b).

Commissioner of the N.Y. State Dept. of Transp. v. Polite · filed 2024-12-04(a)(10)

Based on our balancing of the five factors in CPLR 1001(b), the Nation is not an indispensable party to this action. ... Accordingly, the Supreme Court properly denied dismissal of the amended complaint insofar as asserted against the Trustee defendants pursuant to CPLR 3211(a)(10).

A complaint need not be dismissed under CPLR 3211(a)(10) for failure to join a necessary party when the party was joined in an individual capacity despite a mistaken designation that prejudiced no one.

U.S. Bank, N.A. v. Vetri · filed 2026-06-03(a)(10)

Under these circumstances, where the use of the term "distributee" appears to be a mistake that does not prejudice any party, it can be ignored ( see CPLR 2001, 3026; Matter of Miller v Board of Assessors , 91 NY2d 82, 87; Zhuoya Luo v Wensheng Wang , 176 AD3d 1016, 1017). Therefore, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against him for failure to join a necessary party.

Section 3211(a)(10) permits dismissal for failure to join a necessary party only when joinder is needed for full relief or a judgment would inequitably affect the absent party.

Mizrahi v. Chanel, Inc. · filed 2001-12-17(a)(10)

In order to warrant dismissal for failure to join a necessary party, defendants have to demonstrate that joinder is necessary to accord full relief to the parties presently joined, or that the alleged necessary party would be inequitably affected by any judgment that might result in this action (see, Amsellem v Host Marriott Corp., 280 AD2d 357, 359-360 [1st Dept 2001]).

A motion to dismiss under CPLR 3211(a)(7) must include a copy of the amended complaint; omitting it requires denial of the motion.

Aleksandrowicz v. Cantella & Co. · filed 2010-04-30(a)(7)

We conclude with respect to the appeal by defendant Cantella & Company, Inc. (Cantella) that Supreme Court properly denied its motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (7). As the court properly held, the failure of Cantella to include a copy of the amended complaint with its motion papers is a fatal defect requiring denial of the motion (see Soule v Lozada, 232 AD2d 825 [1996]).

A CPLR 3211(a)(7) motion must include the complaint so the court can determine whether its allegations state a cognizable claim.

Soule v. Lozada · filed 1996-10-24(a)(7)

Obviously, to perform this task the complaint must be before the court. Here, defendant in this legal malpractice action failed to include a copy of the complaint with his motion papers. In light of this fatal defect, Supreme Court properly denied his motion.

CPLR 3211 (e)'s 60-day waiver rule for improper-service objections does not apply to claims in the Court of Claims.

Diaz v. State · filed 1997-08-22(e)

The court thus concludes that the amendment to CPLR 3211 (e) was not intended to apply to claims in the Court of Claims.

Section 3211(g)’s anti-SLAPP pleading standard does not apply to a federal claim brought in federal court.

Ginx, Inc. v. Soho Alliance · filed 2010-08-19(g)

I see no reason to apply a state law pleading standard to a federal claim brought in a federal court.

Section 3211(d) is a New York state procedure that does not apply to this federal motion to dismiss.

Doe v. Alsaud · filed 2014-04-03(d)

That decision involved a New York state procedure — N.Y. CPLR § 3211(d)— that does not apply here.

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

Borisovski v. Lamarre · filed 2020-01-27(a)(7)

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

Section 3211(g)'s affidavit and discovery procedures conflict with Federal Rules 12 and 56, so its discovery limits do not govern this federal action.

Sweigert v. Goodman · filed 2021-04-22(g)

Here, certain procedural aspects of CPLR 3211(g) conflict with Rules 12 and 56 of the Federal Rules of Civil Procedure.

Pretrial motions to dismiss for failure to state a cause of action under CPLR 3211(a)(7) should rarely, if ever, be entertained in Small Claims Court.

Wang v. Sladkus · filed 2023-03-29(a)(7)

Informal and simplified procedures govern small claims actions ( see CCA 1804) and pretrial motions to dismiss for failure to state a cause of action (CPLR 3211[a][7]) should rarely, if ever, be entertained in Small Claims Court ( see Friedman v Seward Park Hous. Corp., 167 Misc 2d 57 [App Term, 1st Dept 1995]; see also Rackowski v Araya , 152 AD3d 834, 836 [2017]).

CPLR 3211(a)(7) permits the court to treat an untimely summary judgment application as a motion directed at the pleadings in the interest of justice and judicial economy.

Surace v. Lostrappo · filed 1998-03-23(a)(7)

However, the court, after an extensive review of the complaint, verified answer and the parties’ depositions, elects to entertain the defendant’s application in the interest of justice and judicial economy, as one directed at the pleadings.

When a motion to dismiss is treated as one for summary judgment under CPLR 3211(c), conflicting affidavits that raise triable issues of fact preclude judgment.

M. Sobol, Inc. v. Goldman · filed 1999-03-08(c)

Furthermore, to the extent that the Supreme Court treated the motion as one for summary judgment (see, CPLR 3211 [c]), we find that the conflicting affidavits create triable issues of fact as to whether Goldman acted as a principal or an agent with respect to the orders reflected in the invoices and account statements (cf., Schneider Fuel Oil v DeGennaro, 238 AD2d 495).

A court may treat a motion to preclude a cause of action as a motion to dismiss it for failure to state a cause of action under CPLR 3211(a)(7).

Premier National Bank v. Effron Fuel Oil Co. · filed 1999-10-08(a)(7)

Defendant has moved, in limine, for an order “precluding” the cause of action asserting a violation of section 181 of the Navigation Law. The court will treat the motion as one for an order dismissing the Navigation Law § 181 cause of action for failure to state a cause of action (CPLR 3211 [a] [7]).

CPLR 3211(c) permits a court to grant summary judgment on a motion to dismiss after searching the record when the dispute raises only an issue of law.

Berzin v. W.P. Carey & Co. · filed 2002-04-11(c)

Accordingly, we modify to grant plaintiff summary judgment pursuant to CPLR 3211 (c) in the amount of defendant’s previous tender of severance benefits, with statutory interest from the date of plaintiff’s termination, the parties’ argument on this point raising only an issue of law (see, Mihlovan v Grozavu, 72 NY2d 506, 508).

A cross motion labeled as made under CPLR 3211 may properly be treated as a motion for summary judgment.

Berger-Vespa v. Rondack Building Inspectors, Inc. · filed 2002-04-11

Although the cross motion by Garrett and Dolen indicates that it was made pursuant to CPLR 3211, Supreme Court properly treated this cross motion as one for summary judgment.

A court may apply summary judgment analysis to a motion to dismiss under CPLR 3211 when the parties cross-move for summary judgment and submit extensive proof.

Franzone v. Quinn · filed 2003-03-06(a)(7)

Initially, we find no merit in plaintiffs contention that Supreme Court improperly applied the analysis for a summary judgment motion to a situation where a motion to dismiss had been made by the County. Although the County’s motion — the first of a series of motions by the parties — sought dismissal pursuant to CPLR 3211, it is readily apparent from the cross motions for summary judgment by Quinn and plaintiff, as well as the extensive proof submitted, that the parties “laid bare their proof’ and “charted the summary judgment course” (Singer v Boychuk, 194 AD2d 1049, 1051 [1993], lv denied 82 NY2d 657 [1993]; see Kavoukian v Kaletta, 294 AD2d 646, 647 [2002]; Phillips v Sollami, 220 AD2d 946, 947 [1995]).

A court may treat a summary judgment motion as a motion to dismiss under CPLR 3211(a)(1) when the circumstances warrant.

Soler v. Klimova · filed 2004-03-25(a)(1)

Under the circumstances presented herein, the court properly treated defendants’ motion for summary judgment as a motion to dismiss under CPLR 3211 (a) (1).

CPLR 3211(c) permits a court to treat a motion to dismiss as one for summary judgment when the parties have charted a summary judgment course.

Ball v. City of Syracuse · filed 2006-03-17(c)

We conclude that the court should have treated defendant’s motion to dismiss as one for summary judgment pursuant to CPLR 3211 (c) in view of the fact that the parties had charted a summary judgment course (see Four Seasons Hotels, 127 AD2d at 320; cf. Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

CPLR 3211 permits a court to treat a motion to dismiss as one for summary judgment only when specified conditions show that the parties understood the dispute to concern a legal question.

Backer v. Bouza Falco Co. · filed 2006-04-11(c)

Where a defendant moves to dismiss the complaint under CPLR 3211, however, the court may only exercise its authority under CPLR 3212 (b) if one of the parties specifically requests summary judgment, the parties deliberately chart a summary judgment course, or the parties appreciated that the issue is exclusively one of law (see Barclay Arms v Barclay Arms Assoc., 74 NY2d 644 [1989]; cf. Mihlovan v Grozavu, 72 NY2d 506 [1988]; Moutafis v Osborne, 18 AD3d 723 [2005]; Shabtai v City of New York, 308 AD2d 532 [2003]).

Section 3211(c) permits a court, with appropriate notice, to treat a motion to dismiss as a motion for summary judgment.

Yule v. New York Chiropractic College · filed 2007-08-02(c)

A court may, however, by giving appropriate notice pursuant to CPLR 3211 (c), treat a CPLR 3211 motion as one for summary judgment (see id. at 802).

CPLR 3211(c) does not permit treating a cross motion as one for summary judgment when its grounds are totally unrelated to those advanced in support of the motion to dismiss.

Primedia Inc. v. SBI USA LLC · filed 2007-09-13(c)

Plaintiffs’ cross motion was premised upon grounds totally unrelated to those advanced by defendant in support of its motion to dismiss pursuant to CPLR 3211 and the cross motion therefore was not properly treated by the court as one for summary judgment pursuant to CPLR 3211 (c).

A court may treat a motion labeled as one for summary judgment as a CPLR 3211 motion to dismiss when the arguments and the parties’ treatment of the motion make the error harmless.

Middleton-Coulibaly v. Danco, Inc. · filed 2011-01-20

If Housing Authority had recited the correct section, it would not have changed any of the substance in the moving or opposition papers, and has therefore caused no prejudice to any party, since all parties treated it as a motion to dismiss. This court will therefore exercise its discretion to convert the motion and treat it as a motion to dismiss.

On a preanswer motion under CPLR 3211(a)(7), a court may decline to treat an alternative request as one for summary judgment and address only the complaint’s allegations.

Sowich v. County of Oneida · filed 2011-12-28(a)(7)

Defendants’ motion was served prior to service of an answer pursuant to CPLR 3211 (a) (7). The alternative request for summary judgment merely references the transcript of the examination of plaintiff conducted pursuant to General Municipal Law § 50-h. The court declines to treat the motion as one for summary judgment and will only address the sufficiency of the allegations of the amended complaint.

A cross motion labeled under CPLR 3211(a) may be treated as a renewed cross motion for summary judgment.

Emergency Restoration Services Corp. v. Corrado · filed 2013-08-21(a)

The Supreme Court properly deemed those branches of Corrado’s cross motion which were denominated as being pursuant to CPLR 3211 (a) to dismiss the two libel causes of action to be branches of a renewed cross motion, in effect, for summary judgment dismissing those causes of action insofar as asserted against her.

A request for dismissal under CPLR 3211(a)(5) may be treated as a summary judgment motion when issue has been joined and both sides address it that way.

Barerra v. City of New York · filed 2015-03-11(a)(5)

Although movants’ notice of motion and supporting papers have sought dismissal under CPLR 3211 (a) (5), both the opposition and reply papers address the request as a motion for summary judgment. Inasmuch as issue has been joined, this court will deem this branch of the motion as a request for summary judgment.

A post-answer summary judgment motion challenging the legal viability of the claims may raise a narrowly framed CPLR 3211(a)(7) ground.

Chenango Contracting, Inc. v. Hughes Associates, Landscape Architects PLLC · filed 2015-05-07(a)(7)

Nonetheless, since the motion (made shortly after serving the answer and before disclosure) argued an absence of any legal viability of the alleged causes of action, Supreme Court did not err in treating the motion as a narrowly framed post-answer CPLR 3211 (a) (7) ground asserted in a summary judgment motion (see David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:28 at 47-48; C3212:20 at 29-30; see also Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d at 1257-1258).

A CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action should be denied as academic when the complaint has been dismissed against the same defendants for lack of personal jurisdiction.

Cadet-Duval v. Gursim Holding, Inc. · filed 2017-02-01(a)(7)

Since the plaintiff admitted in opposition to the motion that she had failed to effect personal service upon the Bawas, the Supreme Court granted that branch of the motion which was to dismiss the complaint insofar as asserted against the Bawas for lack of personal jurisdiction. Under these circumstances, the court should have denied, as academic, that branch of the motion which was to dismiss the complaint insofar as asserted against the Bawas for failure to state a cause of action.

Section 3211(c) allows a court to treat a motion to dismiss as a motion for summary judgment after adequate notice, with an exception when the motion presents only a purely legal question.

Active Chiropractic, P.C. v. Allstate Ins. · filed 2018-02-09(c)

"Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment" (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant's motion exclusively involved "a purely legal question rather than any issues of fact" ( Mihlovan v Grozavu , 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik , 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co. , 50 Misc 3d 137 [A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant's motion to dismiss as one for summary judgment "without first giving notice of its intention to do so" ( Four Seasons Hotels , 127 AD2d at 320).

Section 3211(a)(5) permits a statute of limitations defense to be raised by motion, but the motion may be treated as one for summary judgment when the parties submit evidence and invite resolution on the merits.

Healthy Way Acupuncture, P.C. v. City of NY Off. of Comptroller · filed 2018-06-18(a)(5)

Although defendant's motion was made pursuant to CPLR 3211(a)(5), the parties charted a summary judgment course by submitting documentary evidence laying bare their proof ( see Meredith v Siben & Siben, LLP , 130 AD3d 791 [2015] , lv denied 26 NY3d 910 [2015]) and "clearly invited the motion court to resolve the [statute of limitations] question based on their submissions" ( California Suites, Inc. v Russo Demolition Inc. , 98 AD3d 144, 155-156 [2012]). Under these circumstances, notice of summary judgment treatment was not required ( id. at 156 ; see Nowacki v Becker , 71 AD3d 1496 [2010]) and defendant's motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred ( see Meredith v Siben & Siben, LLP, 130 AD3d at 791).

After an answer is served, a motion based on CPLR 3211 grounds is treated as a CPLR 3212 motion for summary judgment.

Jones v. State of New York · filed 2019-04-18

Although defendant labeled this motion as a motion to dismiss under CPLR 3211 (a) (2), (7) and (8), the motion was made postanswer and, thus, it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in defendant's answer ( see Matter of Andrews v State of New York , 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]; Chenango Contr., Inc. v Hughes Assoc. , 128 AD3d 1150, 1151 [2015]).