N.Y. C.P.L.R. § 3211

On a CPLR 3211 motion to dismiss for lack of standing, defendants bear the burden of establishing that the plaintiff lacks standing.

Rokof Assoc. v. Village Place Corp. · filed 2024-02-15

Defendants failed to meet their burden to establish that plaintiff lacked standing to bring the action in the form of a partnership ( see e.g. Credit Suisse Fin. Corp. v Reskakis , 139 AD3d 509, 510 [1st Dept 2016]).

On a motion to dismiss under CPLR § 3211, the court accepts the complaint’s allegations as true and asks whether the plaintiff could succeed on any reasonable view of those facts.

Zheng v. Daotong LLC · filed 2024-02-15

It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of tlle complaint as true, whether the party can succeed upon any reasonable view of those facts (Perez v. Y & M Transportation Corporation, 219, AD3d 14 4 9, 196 NYS3d 145 [2d Dept., 2023] ) .

On a CPLR § 3211 motion to dismiss, the court accepts the complaint’s allegations as true and asks whether any reasonable view of those facts permits the claim to succeed.

Estate of Leon Tawil v. Sutton · filed 2024-02-23

It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts (Perez v. Y & M Transportation Corpo.ration, 219 AD3d 14 49; 196 NYS3d 145 [2d Dept., 2023]) .

Under CPLR 3211(a)(7), a defendant's affidavits can support dismissal when they conclusively establish that the plaintiff has no cause of action.

Willis v. Genting N.Y. LLC · filed 2024-03-12(a)(7)

While "[a]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 (a) (7) unless they 'establish conclusively that plaintiff has no cause of action' ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636 [1976]; see Lawrence v Graubard Miller , 11 NY3d 588, 595 [2008]; Rozell v Milby , 98 AD3d 960, 961 [2012])" ( Xia-Ping Wang v Diamond Hill Realty, LLC , 116 AD3d 767, 768-769 [2d Dept 2014]), the case at bar presents one of those rare instances.

On a motion to dismiss under subsection (a)(7), the court liberally construes the pleading, accepts the alleged facts as true, and gives the plaintiff every possible favorable inference.

Mackey v. Lawrence Union Free Sch. Dist. · filed 2024-03-13(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; Fuller v Family Servs. of Westchester, Inc. , 209 AD3d 983, 984).

On a motion to dismiss under CPLR 3211(a)(7), the court construes the pleading liberally, accepts its alleged facts as true, and gives the plaintiff every favorable inference.

William Metrose Ltd. Builder/Developer v. Waste Mgt. of N.Y., LLC · filed 2024-03-15(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" ( Leon v Martinez , 84 NY2d 83, 87 [1994]). We must "accept the facts as alleged in the [second amended] complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable [*2]legal theory" ( id. at 87-88).

Section 3211(a)(7) allows a plaintiff to submit affidavits on a motion to dismiss but does not require them to avoid dismissal.

Regal Capital Inc. v. Nomad Ventures LLC · filed 2024-03-20(a)(7)

CPLR 3211 allows a plaintiff to. submit allaws a:plaintiffto submit affidavits, but it does affidavits, but daes not nat oblige ablige him or ar her to to. do do. so so. on penalty of an penalty dismissal (Id.; Sokol af dismissal n 81).

On a pre-discovery § 3211 motion to dismiss, the court does not consider whether the complaint will survive summary judgment or whether the plaintiff can ultimately prove its claims.

56 E. Invs. LLC v. Upreal Brooklyn LLC · filed 2024-03-28

Whether the complaint will later survive a motion for summary judgment, or w:hether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR §3211 motion to dismi.ss (see, Lam v. Weiss, 219 AD3d 713, 195 NYS3d 488 [2d Dept., 2023] ) .

CPLR 3211(a)(7) requires courts to construe pleadings liberally, accept alleged facts as true, give plaintiffs every favorable inference, and decide whether the facts fit a cognizable legal theory.

RSD857 LLC v. Wright · filed 2024-05-13(a)(7)

The court 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” (id. at 87-88).

Section 3211 requires the court to accept the complaint's allegations as true and determine whether the plaintiff could succeed on any reasonable view of the facts.

5506-40 Linden Blvd Brooklyn LLC v. Linden 40 LLC · filed 2024-05-21

It is well sett:Led that upon a motibh to dismiss the court must deterrrtine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts (Perez. v. Y & M Transportation Corporation, 21:9 AD3d 1449, 19E NYS3d i45 [2d Dept., 2023]).

CPLR 3211(a)(7) requires liberal construction of the pleading and permits dismissal only when the alleged facts fit no cognizable legal theory, with pleaded facts presumed true and given every favorable inference.

Nofal v. Yousef · filed 2024-06-12(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction, the court is to determine only whether the facts as alleged fit within any cognizable legal theory, and the facts pleaded are presumed to be true and are to be accorded every favorable inference" ( Recine v Recine , 201 AD3d 827, 829-830; see Leon v Martinez , 84 NY2d 83, 87-88). ... Accordingly, the Supreme Court properly granted the defendants' motion, in effect, pursuant to CPLR 3211(a) to dismiss the amended complaint.

CPLR 3211(a)(7) requires the court to decide whether the pleading states a cause of action by accepting allegations as true and drawing reasonable inferences for the plaintiff.

Minor v. Essence Ventures, LLC · filed 2024-06-23(a)(7)

The court must accept the complaint's allegations as true, afford them a liberal construction, and draw all reasonable inferences in plaintiff's favor and "determine only whether the facts as alleged fit within any cognizable legal theory." Nonnon v. City Of New York, 9 NY3d 825, 827 (2007); ... The court is not concerned with determinations of fact or the likelihood of success on the merits. Reaves, supra at 6 quoting Detmer v Acampora , 207 AD2d 477 (2d Dept 1994).

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

S&P Assoc. of N.Y. LLC v. Dewald · filed 2024-06-27

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction” (Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a pre-discovery motion to dismiss under CPLR §3211, the court does not consider whether the plaintiff will ultimately prove the claims or survive summary judgment.

Joseph v. Joseph · filed 2024-07-23

Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its c:laims, of course, plays no part in the determination of a pre,.....discovery CPLR §3211 motion to dismiss (see, La:tn v. Weiss, 219 AD3d 713, 195 NYS3d 4.88 [2d Dept. , 2023]J.

On a motion to dismiss for failure to state a cause of action, a court may consider a plaintiff's affidavits to remedy defects in the complaint and determine whether the plaintiff has a cause of action.

Potempa v. Potempa · filed 2024-07-26(a)(7)

In reviewing a motion under CPLR 3211 (a) (7), "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one" ( Leon , 84 NY2d at 88 [internal quotation marks omitted]).

A pre-answer motion to dismiss for lack of standing puts the initial prima facie burden on the moving defendant.

Lavine v. State of New York · filed 2024-07-26(a)(3)

"Where, as here, a defendant makes a pre-answer motion to dismiss based on lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied" ( Matter of Violet Realty, Inc. v County of Erie , 158 AD3d 1316, 1317 [4th Dept 2018], lv denied 32 NY3d 904 [2018] [internal quotation marks omitted]).

On a CPLR 3211 motion, the court liberally construes the complaint, accepts its alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Mueller v. Seed Invest Tech. LLC · filed 2024-08-29

On a motion to dismiss pursuant to CPLR 3211, the court must afford the pleading a liberal construction and accept the facts as alleged in the complaint as true, according the plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory ( Leon v. Martinez , 84 NY2d 83, 87-88 [1994]; In re Sea Ltd. Sec. Litig. , 227 AD3d 595, 595 [1st Dept 2024]).

CPLR 3211(a)(7) permits dismissal based on in pari delicto when the defense is apparent on the face of the pleadings.

Seitz v. Marcum LLP · filed 2024-08-30(a)(7)

Plaintiff does not point to any factual dispute that would preclude dismissal on the basis of this doctrine and, indeed, its applicability is apparent on the face of his pleadings. ... Because the complaint is dismissed pursuant to CPLR 3211 (a) (7), the court declines to assess whether it may be dismissed pursuant to CPLR 3211 (a) (5).

On a CPLR 3211(a)(7) motion, the court should not resolve factual disputes.

Mamo v. Integrated Indus. Contr., LLC · filed 2024-09-30(a)(7)

The court should not make factual determinations on a motion to dismiss.

On a motion under CPLR 3211(a)(7), the court accepts the plaintiff's allegations as true, construes the complaint liberally, and gives the plaintiff every favorable inference.

Rosenblum v. Board of Educ. Great Neck Union Free Sch. Dist. · filed 2024-10-09(a)(7)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference" ( Pierce Coach Line, Inc. v Port Wash. Union Free Sch. Dist. , 213 AD3d 959, 960 [internal quotation marks omitted]; see Feldman v Byrne , 210 AD3d 646, 648).

Under CPLR 3211(b), the movant must show that a defense or counterclaim is not stated or lacks merit as a matter of law.

Fiondella v. 345 W. 70th Tenants Corp. · filed 2024-10-10(b)

To dismiss a defense or counterclaim pursuant to CPLR 3211(b), the movant bears the burden of demonstrating that the defense or counterclaim is not stated or is without merit as a matter of law (S. Point, Inc. v Redman, 94 AD3d 1086, 1087 [2d Dept 2012]; Deutsche Bank Natl. Trust Co. v Gordon, 84 AD3d 443, 443-444 [1st Dept 2011]).

On a CPLR 3211(a) motion, evidentiary material that conclusively defeats a bad-faith denial-of-coverage claim can support dismissal.

Zupko Painting, Inc. v. Utica First Ins. Co. · filed 2024-11-06(a)

However, the Supreme Court should have granted that branch of Utica First's motion which was pursuant to CPLR 3211(a) to dismiss so much of the third cause of action asserted against it as alleged that it acted in bad faith in denying coverage to Zupko. The evidentiary material submitted by Utica First conclusively established that it did not act in gross disregard of Zupko's interests ( see Pavia v State Farm Mut. Auto. Ins. Co. , 82 NY2d 445, 454), since it carried out an investigation and disclaimed coverage under the policy based on information then believed to be accurate ( see Liang v Progressive Cas. Ins. Co. , 172 AD3d 696, 699).

Section 3211 lets a plaintiff submit affidavits on a motion to dismiss but does not require them to do so to avoid dismissal.

Lindor v. Mr. Stax Inc. · filed 2024-11-26(a)(7)

CPLR 3211 allows allows a plaintiff plaintiff to submit submit affidavits, affidavits, but but it does does not not oblige oblige him or her penalty of her to do so on penalty of dismissal dismissal (Id.; Sokol Sokol at I1181).

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

E.W. v. Madison-Oneida Bd. of Coop. Educ. Servs. · filed 2024-11-27

On this motion to dismiss pursuant to CPLR 3211, "we must accept the facts alleged in the complaint 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" ( Van Amburgh v Boadle , ___ AD3d ___, ___, 217 NYS3d 713, ___, 2024 [*2]NY Slip Op 04168, *1 [3d Dept 2024] [internal quotation marks and citations omitted]; see Powerflex Solar, LLC v Solar PV Pros, LLC , 230 AD3d 834, 837 [3d Dept 2024]).

On a motion to dismiss under § 3211(a)(7), courts construe the complaint liberally, accept its allegations as true, give the plaintiff favorable inferences, and determine whether the alleged facts fit a cognizable legal theory.

Tailored Fund Cap, LLC v. Gem Ventures, Inc. · filed 2024-12-02(a)(7)

On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, accord plaintiffs the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a motion to dismiss, the court accepts the complaint's allegations as true and asks whether the plaintiff can succeed on any reasonable view of those facts.

Mochitto LLC v. Gurung · filed 2024-12-03

It is well settled that Upon a motion tO dismiss the court must determine, accepting the allegations :of the complaint as true, whether the party can succeed upon any reasonable view of those facts ( Davids v. State, 159 AD3d 987, 7 4 NYS3d 288 [ 2d Dept,, 2018)).

On a motion to dismiss under CPLR 3211(a)(5), the complaint’s allegations are deemed true for purposes of the motion.

McDermott v. Torre · filed 1981-07-16(a)(5)

The essential facts, taken from the allegations of the complaint (deemed true under CPLR 3211, subd [a], par 5, for the purposes of the motions sub judice), as well as from the parties’ affidavits,1 ... are not in dispute, except as to the dates of visits and treatment rendered on each occasion.

On a CPLR 3211 motion to dismiss, the court considers the petition-complaint alone, treats its allegations as true, and gives them every favorable inference.

Nocro, Ltd. v. Russell · filed 2012-04-10

“On a motion to dismiss pursuant to CPLR 3211 . . . the petition-complaint alone must be considered, and all of its allegations are deemed true and afforded the benefit of every favorable inference” (Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621 [2009]).

On a motion to dismiss under CPLR 3211, the pleading receives a liberal construction.

Cortlandt St. Recovery Corp. v. Bonderman · filed 2018-02-20

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

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

Jacques v. 182 Hester St., LLC · filed 2024-12-20

On a CPLR 3211 motion to dismiss, "the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994]). The court 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" (id. at 87-88).

On a motion to dismiss under § 3211(a)(7), the court must construe the pleading liberally, accept its alleged facts as true, and give the claimant every favorable inference.

JDS Constr. Group LLC v. Copper Servs., LLC · filed 2024-12-23(a)(7)

On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the court must afford the pleadings a liberal construction and accept the facts alleged in the complaint as true, according the plaintiff the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87–88 [1994]).

Section 3211 limits the court’s review on a motion to dismiss to whether the pleadings state a cause of action.

Sanabria v. Brisman · filed 2024-12-24

Here, as Defendant moved to dismiss the action pursuant to CPLR 3211, this Court is limited to an examination of Plaintiff's pleadings to determine whether they state a cause of action (see Miglino v Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351, 985 NE2d 128, 961 NYS2d 364 [2013]).

Under CPLR 3211(a)(7), evidentiary submissions may support dismissal when they conclusively establish that the plaintiff has no cause of action.

Estate of Alston v. Harlem Ctr. for Nursing & Rehabilitation LLC · filed 2025-01-14(a)(7)

Dismissal is warranted if “the affidavits establish conclusively that plaintiff has no cause of action” (Crampton v Garnet Health, 73 Misc 3d 543, 553 [Orange Co SC 2021]). ... As in Hasan, the documents submitted with the motion to dismiss including, decedent’s medical records, pandemic related policies and state issued guidelines, and the affirmations of Dr. Ogbovah and Thara Cesar establish that defendants were providing health care services under COVID-19 emergency orders, that the care was impacted by decisions in response to state directives, and the decedent was provided care in good faith, and thus defendants are entitled to immunity under the statute (Hasan, 224 AD3d at 478).

Section 3211(a)(7) requires a court to accept the complaint’s factual allegations as true, draw favorable inferences for the plaintiff, and decide whether the alleged facts fit a cognizable legal theory.

Rozwadowski v. Authentic Brands Group LLC · filed 2025-01-15(a)(7)

On a CPLR 3211 (a) (7) motion to dismiss, 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 83, 87-88 [1994]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a CPLR 3211(a)(7) motion to dismiss an Article 78 petition, the court treats the petition’s allegations as true and gives the petitioner every possible inference.

Matter of South Blooming Grove Fire Dist. v. Village of S. Blooming Grove · filed 2025-01-29(a)(7)

"On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference" ( Matter of Silverman v Town of Ramapo , 222 AD3d 652, 653; see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County , 227 AD3d 708, 709).

Section 3211(a)(7) requires the court to draw favorable inferences from the plaintiff’s allegations when deciding whether a claim can proceed.

Di Francesco v. McEnroy · filed 2025-03-04(a)(7)

But on a motion to dismiss standard, Plaintiff is entitled to every ... favorable inference, and she alleges that Defendant has failed to comply with the terms of the Agreement. Therefore, dismissal of this cause of action at this time would be premature.

On a CPLR 3211 motion to dismiss, courts draw all inferences in the petitioners' favor.

Matter of Uni-Rty Corp. v. New York Guangdong Fin., Inc. · filed 2025-03-06

It is not dispositive that this Court previously sustained petitioners' Debtor and Creditor Law § 276 claim on an appeal from respondents' CPLR 3211 motion to dismiss ( see Matter of Uni-Rty Corp. v New York Guangdong Fin., Inc. , 117 AD3d 427 [1st Dept 2014]). On that motion, all inferences were to be drawn in petitioners' favor.

On a pre-discovery motion to dismiss under CPLR 3211, the court cannot resolve a qualified privilege defense by making factual findings on an undeveloped record.

Maines Food & Party Warehouse, Inc. v. Hurlburt · filed 2025-03-10

It is a pre-discovery motion to dismiss, so the Court cannot make findings of fact, and the record has not been developed. As a result, there is not enough evidence for the Court to define the scope of any common interest privilege.

On a motion under CPLR 3211(a)(7), the nonmoving party does not bear the burden of rebutting a defense raised by the moving party.

Gonnelly v. Newburgh Operations, LLC · filed 2025-03-19(a)(7)

"On a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328; see Sokol v Leader , 74 AD3d 1180, 1181).

On a motion to dismiss for failure to state a cause of action, affidavits warrant dismissal if they conclusively establish that the plaintiff has no cause of action.

Barulich v. Mary Manning Walsh Nursing Home Co., Inc. · filed 2025-03-21(a)(7)

Dismissal is warranted if “the affidavits establish conclusively that plaintiff has no cause of action” (Crampton v Garnet Health, 73 Misc 3d 543, 553 [Orange Co SC 2021]).

On a motion to dismiss under CPLR 3211(a)(7), courts deem the pleading's allegations true and give them every favorable inference.

Matter of Meyer v. Town of Hempstead · filed 2025-04-02(a)(7)

"On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) and 7804(f), all of the allegations in the pleading are deemed true and afforded the benefit of every favorable inference" ( Matter of Fanizzi v Planning Bd. of Patterson , 146 AD3d 98, 107 [internal quotation marks omitted]).

A defendant’s affidavit attacking a pleading generally warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Simmons v. Lindstrom · filed 2025-04-07(a)(7)

It is well established that, pursuant to CPLR 3211 (a) (7), an affidavit used by a defendant to attack the sufficiency of a pleading will seldom if ever warrant dismissal unless such affidavit conclusively establishes that plaintiff has no cause of action ( see Rovello v Orofino Realty Co. , 40 NY2d 633,636 [1976]). Here, defendants submit the affidavit of decedent's former lawyer, who avers that she investigated the transfer of money pursuant to several income withholding orders in 2017 and found money an excess of $214,000 had been transferred to plaintiff. Since plaintiff disputes this contention under oath, dismissal is not appropriate at the pleading stage.

On a motion to dismiss under § 3211(a)(7), the court accepts the complaint’s factual allegations as true, gives the plaintiff every favorable inference, and asks whether the alleged facts fit a cognizable legal theory.

Yolanda Mgt. Corp. v. MicroAlgo, Inc. · filed 2025-04-08(a)(7)

On 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 into any cognizable legal theory" (Siegmund Strauss, Inc. v E. 149th Realty Corp., 104 AD3d 401, 403 [1st Dept 2013]).

On a CPLR 3211 motion to dismiss, courts liberally construe the complaint, accept its alleged facts as true, and give the plaintiff every favorable inference in deciding whether the allegations fit a cognizable legal theory.

Grandelli v. City of New York · filed 2025-04-15

On a CPLR 3211 motion to dismiss, the allegations in the complaint are to be afforded liberal construction, and the facts alleged therein are to be accepted as true, according a plaintiff the benefit of every possible favorable inference and determining only whether the facts alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Jericho Group, Ltd. v Midtown Dev., L.P., 32 AD3d 294, 298 [1st Dept 2006]).

On a CPLR 3211(a)(2) motion, the court liberally construes the pleadings and accepts the complaint's allegations and opposition submissions as true when assessing subject matter jurisdiction.

Pearl Beta Funding, LLC v. Elegant Trio Colors Corp. · filed 2025-04-16(a)(2)

"In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded a liberal construction" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326), and "the facts alleged in the complaint and any submissions in opposition to the dismissal motion" are accepted as true ( 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 152). ... These averments, viewed in the light most favorable to the plaintiff, were sufficient, at this early stage of the litigation, to establish that the Supreme Court could exercise subject matter jurisdiction over this action ( see Business Corporation Law § 1314[b][1], [4]; cf. Techo-TM, LLC v Fireaway, Inc. , 123 AD3d at 610).

Under CPLR 3211(a)(7), a defendant’s affidavit generally warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Kisla v. Schafer's Port Jefferson · filed 2025-04-23(a)(7)

Although a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), an affidavit submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless it establishes conclusively that the plaintiff has no cause of action ( see Doe v Ascend Charter Schs. , 181 AD3d at 650; Phillips v Taco Bell Corp. , 152 AD3d at 807-808; Bokhour v GTI Retail Holdings, Inc. , 94 AD3d 682, 682-683).

Section 3211(a)(3) requires a defendant seeking dismissal for lack of standing to make a prima facie showing; the plaintiff need only raise a question of fact in response.

Green v. Forster & Garbus, LLP · filed 2025-04-23(a)(3)

"Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" ( Fossella v Adams , 225 AD3d 98, 108 [internal quotation marks omitted]). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" ( Sizova v Union Mut. Fire Ins. Co. , 217 AD3d 1007, 1008 [internal quotation marks omitted]; see Wilmington Trust, N.A. v Teo , 204 AD3d 735, 736-737).

On a CPLR § 3211 motion to dismiss, the court liberally construes the pleading, accepts its alleged facts as true, and gives the claimant every possible inference.

Williams Real Props. Corp. v. Music & Mentoring House, Inc. · filed 2025-04-29

It is well settled that when considering a motion to dismiss pursuant to CPLR § 3211, “the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true and according the plaintiff the benefit of every possible inference.” Avgush v. Town of Yorktown, 303 A.D.2d 340, 341 [2d Dept. 2003].

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires a showing that a claimed material fact is false and no significant dispute exists about it.

Lara v. S&J Operational, LLC · filed 2025-04-30(a)(7)

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and dismissal shall not eventuate unless it has been shown that a material [*2]fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ( see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275).

A plaintiff or petitioner moving to dismiss an affirmative defense under CPLR 3211(b) bears the burden of showing that the defense is not stated or has no merit.

69-81 108th Realty, LLC v. Zaroogian · filed 2025-05-02(b)

In moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff or petitioner bears the burden of establishing "that a defense is not stated or has no merit."

On a motion to dismiss for failure to state a cause of action, the court should consider a plaintiff's affidavit to remedy defects in the complaint.

Rauch v. Rauch · filed 2025-05-07(a)(7)

Here, the Supreme Court should have considered the plaintiff's affidavit to remedy any defects in the complaint when it assessed the defendants' motion ( see Leon v Martinez , 84 NY2d 83, 88; Hountenbous v Fordune Assn., Inc. , 200 AD3d 662, 664).

When evidence is considered on a CPLR 3211(a)(7) motion, dismissal is improper if the evidence does not conclusively refute a material allegation and a significant factual dispute remains.

Raiola v. Roman Catholic Diocese of Brooklyn · filed 2025-05-14(a)(7)

Contrary to the Diocese's contention, an affidavit and documents submitted in support of its motion failed to conclusively establish that it did not supervise or control Maher during the relevant time period or that the plaintiff's allegation that Maher was the Diocese's [*2]employee or agent was not a fact at all and that no significant dispute exits regarding it ( see 808 Union St., LLC v J. Lehman Park Slope, LLC , 216 AD3d at 884-885; see also J.A.F. v Roman Catholic Archdiocese of N.Y. , 216 AD3d 454, 454-455; J.D. v Archdiocese of N.Y. , 214 AD3d 561).

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the defendant bears the prima facie burden of establishing that the plaintiff lacks standing.

Newburgh Realty II, LLC v. IPA Asset Mgt., LLC · filed 2025-05-14(a)(3)

Here, the defendants, as movants, failed to meet their prima facie burden of establishing the plaintiff's lack of standing ( see Fossella v Adams , 225 AD3d at 108; HSBC Bank USA, N.A. v Virk , 186 AD3d 1343, 1345-1346).

On a motion to dismiss for failure to state a claim, the court liberally construes the pleading, presumes its factual allegations true, and gives it every favorable inference.

Vanderbilt Props. LLC v. Ladha · filed 2025-05-15(a)(7)

The law on dismissal under CPLR § 3211 is clear and well-settled: claims should be liberally construed, facts presumed to be true, and the pleading accorded the benefit of every possible favorable inference (see e.g. Leon v Martinez, 84 NY2d 83 [1994]; Anderson v Edmiston & Co., 131 AD3d 416, 417 [1st Dept 2015]).

On a CPLR 3211 motion to dismiss, the court accepts the plaintiff’s factual allegations as true, reads the pleadings liberally, and gives the plaintiff every possible favorable inference.

Brownell v. Harris · filed 2025-05-19

On a Defendant’s motion to dismiss under CPLR 3211, the Court must accept the plaintiff’s factual allegations as true, afford the pleadings a liberal construction, and accord plaintiff the benefit of every possible favorable inference (Leon v. Martinez, 84 N.Y.2d 83, 87-88 [1994]).

When a court considers evidence on a CPLR 3211(a)(7) motion without converting it to summary judgment, the question is whether the plaintiff has a cause of action, rather than whether the complaint states one.

Chen v. Metropolitan Tr. Auth. · filed 2025-06-04(a)(7)

"Further, where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed" ( May Dock Lane, LLC v Harras Bloom & Archer, LLP , 222 AD3d 635, 636-637 [alteration and internal quotation marks omitted]; see Guggenheimer v Ginzburg , 43 NY2d 268, [*2]275).

On a CPLR 3211(a)(7) motion, the court accepts the complaint’s facts as true and does not resolve factual questions about when a claim accrued.

Oppenheimer v. Machinist · filed 2025-06-06(a)(7)

As the Second Department held very recently, "On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory." ... Reviewing the complaint, the Court finds that these claims appear on their face to be timely. The issues of whether defendant lawfully obtained the funds at issue and when he allegedly converted them, as well as the intricacies of the fiduciary relationship are fact-based. ... This raises factual issues that cannot be addressed at this preliminary stage of the action. Accordingly, the Court denies the motion to dismiss in their entirety.

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

Caiaccia v. New York City Dept. of Educ. · filed 2025-06-26(a)(7)

The following facts are taken from the complaint and are assumed to be true for the purposes of this motion (Leon v Martinez, 84 NY2d 83, 87 [1994]).

On a motion to dismiss under CPLR 3211(a)(7), evidentiary material can establish that a material fact alleged in the complaint is not a fact at all.

Margarita v. Mountain Time Health, LLC · filed 2025-07-09(a)(7)

Therefore, the defendants established that "a material fact as claimed by the plaintiff"—that she was the only layoff in her department—"was not a fact at all" ( Thaw v North Shore Univ. Hosp. , 129 AD3d 937, 939 [internal quotation marks omitted]; see Cordell Marble Falls, LLC v Kelly , 191 AD3d at 762; cf. Kaplan v New York City Dept. of Health & Mental Hygiene , 142 AD3d 1050, 1052).

On a motion to dismiss for lack of standing, the defendant must establish the plaintiff’s lack of standing as a matter of law; the plaintiff need only raise a question of fact in response.

Tomlinson v. Enterprise-2411 Hempstead · filed 2025-07-17(a)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( U.S. Bank N.A. v Marrero , 221 AD3d 631, 633 [2023] [internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v Matamoro , 200 AD3d 79, 90 [2021]). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" ( Sizova v Union Mut. Fire Ins. Co. , 217 AD3d 1007, 1008 [2023] [internal quotation marks omitted]; see Sikh Forum, Inc. v Saluja , 227 AD3d 1024, 1025 [2024]).

On a motion to dismiss under Section 3211(a)(5), the court must accept the complaint’s factual allegations as true and give the plaintiff every possible favorable inference.

Li v. City of New York · filed 2025-07-23(a)(5)

"On a motion to dismiss pursuant to CPLR 3211(a)(5), the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference" ( Jacobson Dev. Group, LLC v Grossman , 198 AD3d 956, 958).

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

Salter v. Meta Platforms, Inc. · filed 2025-07-25

It is well established that, "[w]hen reviewing a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Williams v Beemiller, Inc. , 100 AD3d 143, 148 [4th Dept 2012], amended on rearg 103 AD3d 1191 [4th Dept 2013] [internal quotation marks omitted]; see generally Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

On a pre-discovery motion to dismiss under CPLR §3211, the court does not consider whether the petitioner will ultimately prove its claims or survive summary judgment.

11114 101 Ave Corp. v. Ramlogan · filed 2025-07-28

Whether the complaint or the petition will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR §3211 motion to dismiss ( see , Lam v. Weiss , 219 AD3d 713, 195 NYS3d 488 [2d Dept., 2023]).

On a motion to dismiss under § 3211(a)(5), the plaintiff’s allegations are treated as true and reasonable inferences are resolved in the plaintiff’s favor.

Benjamin v. Kahen · filed 2025-08-06(a)(5)

In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), 'the plaintiff's allegations are to be treated as true, [and] all inferences that reasonably flow therefrom are to be resolved in his or her favor'" ( Davin v Plymouth Rock Assur. Co. of N.Y. , 227 AD3d at 863-864, quoting Sacchetti-Virga v Bonilla , 158 AD3d 783, 784).

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

Yu v. Mask Pot, Inc. · filed 2025-08-13(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Sternberg v Wiederman , 225 AD3d 820, 821).

When a court considers evidentiary material on a CPLR 3211(a)(7) motion without converting it to summary judgment, dismissal requires conclusive proof that the plaintiff has no cause of action.

Estate of Maryanne Pierro v. Carmel Richmond Healthcare & Rehabilitation Ctr. · filed 2025-08-13(a)(7)

Dismissal pursuant to CPLR 3211(a)(7) is warranted only where the evidentiary material "conclusively establish[es] that [the plaintiff] has no cause of action" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636; see Guggenheimer v Ginzburg , 43 NY2d at 275; Martinez v NYC Health & Hosps. Corp. , 223 AD3d at 732).

On a motion under CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party.

Dinunzio v. Cobble Hill Health Ctr., Inc. · filed 2025-08-13(a)(7)

"On a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1328; see Sokol v Leader , 74 AD3d 1180, 1181).

On a motion under CPLR 3211(a)(7), a court accepts the complaint’s factual allegations as true, gives the plaintiff every favorable inference, and determines whether those facts fit a cognizable legal theory.

Farah v. City of New York · filed 2025-09-17(a)(7)

As to the remaining defendants, on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a 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 83, 87-88; see Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C. , 222 AD3d 706, 707).

On a CPLR 3211(a)(7) motion, the court liberally construes the complaint, presumes pleaded facts to be true, gives them every favorable inference, and asks whether they fit any cognizable legal theory.

Trump Vil. Section 4, Inc. v. Luca · filed 2025-09-24(a)(7)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction, the court is to determine only whether the facts as alleged fit [*2]within any cognizable legal theory, and the facts pleaded are presumed to be true and are to be accorded every favorable inference" ( Pinnacle Capital, LLC v O'Bleanis , 214 AD3d 913, 915 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88).

On a CPLR 3211 motion to dismiss, the court begins with the complaint, accepts its allegations as true, gives plaintiffs favorable inferences, and asks whether the alleged facts fit a cognizable legal theory.

Golden v. EcoHealth Alliance, Inc. · filed 2025-09-30

On a CPLR 3211 motion to dismiss, our analysis must begin with the complaint ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994] ["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"]).

To defeat a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing of jurisdiction, although the plaintiff bears the ultimate burden of proving it.

Lesavoy v. Brady · filed 2025-10-08(a)(8)

The Supreme Court properly granted dismissal of the first through fourth causes of action pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. "The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction" ( Fanelli v Latman , 202 AD3d 758, 759). However, to defeat a motion pursuant to CPLR 3211(a)(8), a plaintiff "need only make a prima facie showing that personal jurisdiction exists" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 49).

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

Brooklyn Tabernacle v. Thor 180 Livingston, LLC · filed 2025-10-08(a)

In the context of a motion to dismiss the complaint pursuant to CPLR 3211(a), 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 83, 87-88).

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the defendant bears the initial burden of showing that the plaintiff lacks standing.

Hall v. Nassau County · filed 2025-10-22(a)(3)

Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, the burden is on the moving defendant to establish, prima [*3]facie, the plaintiff's lack of standing.

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

529 E. 235th St. Estates LLC v. City of New York · filed 2025-11-25

On a motion to dismiss brought under CPLR § 3211, the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994] [citations omitted]).

On a motion under CPLR 3211(a)(7), a defendant’s evidentiary submissions warrant dismissal only if they conclusively establish that the plaintiff has no cause of action.

Gaviria v. Sapphire Ctr. for Rehabilitation & Nursing of Cent. Queens, LLC · filed 2025-11-26(a)(7)

Submissions by the defendant on a motion pursuant to CPLR 3211(a)(7) "will seldom if ever warrant [dismissal] unless [they] establish conclusively that plaintiff has no cause of action" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636; see Lawrence v Graubard Miller , 11 NY3d 588, 595).

Under CPLR 3211(a)(7), a defendant's evidentiary submissions warrant dismissal only if they conclusively establish that the claimant has no cause of action.

Brown v. State of New York · filed 2025-11-26(a)(7)

The State's submissions were insufficient to conclusively establish that the plaintiff has no claim to recover damages for negligence ( see Guggenheimer v Ginzburg , 43 NY2d at 275; TV Tech Mgrs., Inc. v Cohen , 227 AD3d at 839-840; Doe v Ascend Charter Schs. , 181 AD3d at 648).

On a CPLR 3211 motion, a defendant's bare assertion that plaintiffs were not overcharged does not meet its burden to dismiss the complaint.

Burrows v. 75-25 153rd St., LLC · filed 2025-12-02

Thus, defendant's bare assertion that plaintiffs were not overcharged did not meet their burden on a CPLR 3211 motion ( see Burrows , 44 NY3d at 83 ["On a motion to dismiss, the complaint must be construed in the light most favorable to plaintiff and all factual allegations must be accepted as true"]).

On a motion to dismiss under CPLR 3211(a), the court accepts the petition’s alleged facts as true and gives the petitioner every possible favorable inference.

Matter of Lavorato · filed 2025-12-19(a)

On this motion to dismiss pursuant to CPLR 3211(a), in which the court "must accept the facts as alleged in the [petition] as true and accord the [petitioner] the benefit of every possible favorable inference" ( Matter of Steinberg , 183 AD3d 1067, 1075 [3d Dept 2020]; see also Estate of Clifford , 83 Mis.3d 973, 975 [Surr. Ct. Monroe Cnty. 2024]), the Estate argues that Megan has no standing to bring a proceeding under SCPA 2102(1) because a) she is not a shareholder and b) this is a dispute between living persons — the corporation and Megan — and beyond the jurisdiction of the surrogate court.

On a CPLR 3211(a) motion to dismiss, the court accepts the pleaded facts as true and does not weigh evidence or assess credibility.

Negron v. State of New York · filed 2025-12-24(a)

On a motion to dismiss pursuant to CPLR 3211(a), "[the] Court of Claims, like other trial courts, should 'accept the facts as alleged in the claim as true'" ( Warney v State of New York , 16 NY3d 428, 435 [alteration omitted], quoting Leon v Martinez , 84 NY2d 83, 87). In determining whether a claimant has pleaded a cause of action, the court should not weigh the evidence or make any factual or credibility determinations ( see id. ).

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the moving defendant bears the initial burden of establishing the plaintiff's lack of standing.

Farmingdale Pub. Lib. v. Farmingdale Union Free Sch. Dist. · filed 2025-12-24(a)(3)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" ( Whitson's Food Serv., LLC v A.R.E.B.A.-Casriel, Inc. , 230 AD3d 1274, 1275 [internal quotation marks omitted]; see Matter of Crown Castle NG E., LLC v City of Rye , 207 AD3d 624, 626). ... The School District therefore established, prima facie, that the plaintiff did not sustain an "injury-in-fact" and, thus, could not pursue its claims against either the School District or the LIPA defendants ( see generally Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig. , 30 NY3d 377, 384).

When a defendant submits evidence on a CPLR 3211(a)(7) motion, dismissal requires conclusive proof that the plaintiff has no cause of action.

Damiani v. WSNCH N., Inc. · filed 2025-12-24(a)(7)

Thus, to obtain dismissal, the defendants were required to "conclusively" establish, as a matter of law, that they were entitled to immunity under the EDTPA or the PREP Act ( id. [internal quotation marks omitted]).

On a motion to dismiss under CPLR 3211(a)(7), the plaintiff receives the benefit of all favorable inferences.

Cohen v. Cohen · filed 2026-01-15(a)(7)

In any event, giving plaintiff the benefit of all favorable inferences as required on a CPLR 3211(a)(7) motion, she alleges that Cohen caused the Judgment Debtors' funds owed to her to be diverted to Cred P and Recet in order to circumvent payment of the funds owed to her, which would render her judgment against the Judgment Debtors "nothing more than a pyrrhic victory" ( Rich v J.A Madison, LLC , 241 NYS3d 639, 644 [1st Dept 2025]; see also GNHC 1703-518, LLC v Venari Partners, LLC , 2024 NY Slip Op 32388[U], *12 [Sup Ct, NY County 2024]).

On a motion to dismiss for lack of standing, defendants bear the burden of establishing that the plaintiffs lack standing.

BH 336 Partners LLC v. Sentinel Real Estate Corp. · filed 2026-01-22(a)(3)

However, the Supreme Court was correct in holding that defendants did not meet their burden on a motion to dismiss to establish that the remaining plaintiffs lacked standing.

On a pre-answer motion under CPLR 3211(a)(3), the defendant bears the burden of showing that the plaintiff lacks standing.

A Participations Ltd. v. Velissaris · filed 2026-02-24(a)(3)

On a pre-answer motion to dismiss brought under CPLR 3211 (a) (3), the defendant bears the burden of demonstrating that the plaintiff lacks standing to sue (Homelink Intl., Inc. v Law Offs. of Sanjay Chaubey, - AD3d -, 2025 NY Slip Op. 05460, *1 [1st Dept 2025]). ... Because plaintiffs’ fraud claim is direct by nature, rather than derivative, the court denies so much of IQCM’s motion to dismiss the nineteenth cause of action in the SAC for lack of standing (see NYSCEF Doc No. 567, Decision and Order resolving MS #030, same index number).

On a motion to dismiss under CPLR 3211(a)(7), the court construes the complaint liberally, assumes its alleged facts are true, and gives the plaintiff every favorable inference when deciding whether the allegations fit a cognizable legal theory.

Casares v. Village of Westbury · filed 2026-02-25(a)(7)

'On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory'" ( Weinstein v Levitin , 208 AD3d 531, 532, quoting Gruber v Donaldsons, Inc. , 201 AD3d 887, 888; see Clevenger v Yuzek , 222 AD3d 931, 934).

When parties submit evidentiary material on a motion under § 3211(a)(7), the question is whether the plaintiff has a cause of action, not merely whether the pleading states one.

Harrington v. Ortolani · filed 2026-03-04(a)(7)

"Where, as here, the parties have submitted evidentiary material to the court, the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" ( 72 Poplar Townhouse, LLC v Board of Mgrs. of the 72 Poplar St. Condominium , 224 AD3d 645, 646-647 [internal quotation marks omitted]; see Guggenheimer v Ginzburg , 43 NY2d 268, 275).

On a motion to dismiss under CPLR 3211(a)(7), a court may issue a declaration of the parties’ rights when no issues of fact remain.

Matter of Ment v. Onondaga County Comm. of Conservative Party of N.Y. State · filed 2026-03-20(a)(7)

We note that a declaration is appropriate in the context of the cross-motion to dismiss pursuant to CPLR 3211 (a) (7) in the absence of any issues of fact ( see Plaza Dr. Group of CNY , LLC v Town of Sennett , 115 AD3d 1165, 1166 [4th Dept 2014]; Matter of Max v Ward , 107 AD3d 1597, 1601 [4th Dept 2013]; see generally David D. Siegel & Patrick M. Connors, New York Practice § 440 at 848 [6th ed 2018]).

On a CPLR 3211(a)(7) motion, the burden does not shift to the nonmoving party.

Wilber v. Borgen · filed 2026-04-01(a)(7)

The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7).

Under CPLR 3211(a)(7), evidentiary material does not warrant dismissal unless it conclusively disproves a material fact alleged in the complaint.

Graham v. City of New York · filed 2026-04-01(a)(7)

Here, as the plaintiff correctly contends, the evidentiary material submitted in support of the defendants' motion failed to demonstrate that any fact alleged in the complaint was undisputedly not a fact at all, as the defendants' evidence proved only that the plaintiff's motion for leave to serve a late notice of claim had been denied, not that the plaintiff's prior attorney had failed to file a timely notice of claim in the first place ... Accordingly, the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint should have been denied.

Under CPLR 3211(a)(7), evidentiary submissions can support dismissal when they establish that material allegations are not facts and no significant dispute remains.

Matter of Asselbergs v. Village of Chestnut Ridge · filed 2026-04-15(a)(7)

Here, the evidentiary materials submitted by the respondents demonstrated that the petitioners' allegations that the resolution was arbitrary and capricious and that the Village Board failed to identify the relevant areas of environmental concern as related to the comprehensive plan, take the requisite hard look, and make a reasoned elaboration of the basis for its determination were not facts at all and that no significant dispute exists regarding those allegations (see Matter of Elizabeth St. Garden, Inc. v City of New York, 42 NY3d 992, 994; Matter of Jellyfish Props., LLC v Incorporated Vil. of Greenport, 220 AD3d at 780). Accordingly, the Supreme Court properly granted the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition for failure to state a cause of action.

On a motion to dismiss for lack of standing, the defendant must establish the plaintiff's lack of standing as a matter of law; the plaintiff need only raise a question of fact to defeat the motion.

Brewer v. 71 Pilling Project, LLC · filed 2026-04-15(a)(3)

"Where a CPLR 3211(a)(3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89-90; see Agudas Chasidei Chabad of United States v Simpson, 239 AD3d 796, 799). The plaintiff does not have the burden of establishing his or her standing as a matter of law but must merely raise a question of fact as to standing to defeat such a motion (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d at 90).

On a motion to dismiss, the court does not decide whether the plaintiff can ultimately prove the complaint's allegations.

VanHooser v. Fine · filed 2026-04-24(a)(7)

"Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss"

On a CPLR 3211(a)(3) standing motion, the defendant bears the initial burden to establish the plaintiff’s lack of standing as a matter of law.

Joseph G. Shapiro Ltd. Family Partnership v. Sun Lakes Dev. Corp. · filed 2026-05-20(a)(3)

"'On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law'" (Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 691, quoting New York Community Bank v McClendon, 138 AD3d 805, 806; see CPLR 3211[a][3]; Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89-90).

On a CPLR 3211(a)(3) standing motion, the defendant bears the initial burden to establish the plaintiff’s lack of standing as a matter of law.

City of Philadelphia Bd. of Pensions & Retirement v. Winters · filed 2026-05-20(a)(3)

"Where a CPLR 3211(a)(3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89-90; see Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 691).

On a motion to dismiss under CPLR 3211(a)(7), the court accepts the plaintiff’s alleged facts as true, construes the complaint liberally, and gives the plaintiff every favorable inference.

Serba v. Cook · filed 2026-06-03(a)(7)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference" ( Dee v Rakower , 112 AD3d 204, 208; see Leon v Martinez , 84 NY2d 83, 87-88).

Under § 3211(a)(7), evidentiary material warrants dismissal only if it conclusively establishes that the plaintiff has no cause of action.

Agams v. Shore View Acquisition I, LLC · filed 2026-06-24(a)(7)

Dismissal pursuant to CPLR 3211(a)(7) is warranted only where the evidentiary material "conclusively establish[es] that [the plaintiff] has no cause of action" ( Rovello v Orofino Realty Co. , 40 NY2d 633, 636; see Guggenheimer v Ginzburg , 43 NY2d at 275; Martinez v NYC Health & Hosps. Corp. , 223 AD3d at 732).

CPLR 3211(c) permits a party opposing a motion to dismiss to submit authorized proof in support of the complaint.

Lesterwick v. Queens County Bar Ass'n · filed 1964-08-28(c)

To that end, he may file, with proof of service, his answering brief in support of his complaint and such proof as is authorized by CPLR 3211 (subd. [c]) ... on or before September 14, 1964.

A court deciding a CPLR 3211 motion to dismiss must apply the dismissal standards without improperly determining issues.

Stang LLC v. Hudson Sq. Hotel, LLC · filed 2018-02-06

Contrary to plaintiffs' contention, the motion court did not engage in improper issue determination; rather, it applied the correct standards on a CPLR 3211 motion to dismiss.

On a motion to dismiss under CPLR 3211(a), the court views the complaint's allegations in the light most favorable to the plaintiffs.

Sculti v. Finley · filed 2018-12-12(a)

Here, viewing the allegations in the complaint in the light most favorable to the plaintiffs, the complaint stated a cause of action based upon Forbes's conduct in connection with obtaining the search warrant ( see Delgado v City of New York , 86 AD3d at 510).

A defendant moving to dismiss under CPLR 3211 must demonstrate entitlement to dismissal.

Bank of N.Y. Mellon v. Gordon · filed 2019-03-27

Further, we agree with the Supreme Court's determination to deny those branches of Gordon's cross motion which were pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him, as he failed to demonstrate his entitlement to such relief.

On a motion to dismiss under CPLR 3211(a)(7), reasonable reliance generally cannot be resolved as a matter of law.

Bankers Conseco Life Ins. Co. v. KPMG LLP · filed 2020-12-01(a)(7)

Assuming, arguendo, that reliance is required for aiding and abetting (as opposed to fraud), the question of what constitutes reasonable reliance is not generally to be resolved as a matter of law on a motion to dismiss ( ACA Fin. Guar. Corp. v Goldman, Sachs & Co., 25 NY3d 1043, 1045 [2015]).

On a CPLR 3211 motion to dismiss, reasonable reliance in a fraud claim generally cannot be resolved as a matter of law.

Avnet, Inc. v. Deloitte Consulting LLP · filed 2020-10-06

Defendant contends that plaintiff cannot establish the reliance necessary for its fraud claims because it failed to conduct an investigation. However, "the question of what constitutes reasonable reliance is not generally a question to be resolved as a matter of law on a motion to dismiss" ( ACA Fin. Guar. Corp. v Goldman, Sachs & Co., 25 NY3d 1043, 1045 [2015]).

On a CPLR § 3211 motion, affidavits generally do not warrant dismissal unless they conclusively establish that the plaintiff has no cause of action.

Shoreview Holdings, LLC v. Fernandez · filed 2025-12-22

Thus, even if the court were to consider the defective affirmation, respondent does not establish that petitioner owns more than (10) units. Petitioner's principal affirms that he owns a total of eight (8) units, including the subject basement unit. At best, this is a triable issue. ( see Sokol v Leader , 74 AD3d 1180, 1182 [2d Dept 2010] (affidavits ... "will almost never warrant dismissal under CPLR § 3211 unless they can 'establish conclusively that [the plaintiff] has no cause of action'"), quoting Rovello v. Orofino Realty Co. , 40 NY2d 633, 636 [1976]; Lawrence v Miller , 11 NY3d 588, 595 [2008]; Bianco v Law Offices of Yuri Prakhin , 189 AD3d 1326 [2d Dept 2020]).

When a plaintiff amends the complaint as of right and the defendants elect to seek dismissal of the amended complaint, the court treats the CPLR 3211(a) motion as directed against the amended complaint.

Rutigliano v. Tri City Constr. Corp. · filed 2026-06-24(a)

As a threshold matter, we note that because the plaintiff properly filed an amended complaint as of right in response to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and in their reply, the defendants elected to apply their request for dismissal to the amended complaint, which superseded the original complaint, we consider the defendants' motion as directed against the amended complaint ( see Ofman v Tenenbaum Berger & Shivers, LLP , 217 AD3d 960, 961; Estate of Feenin v Bombace Wine & Spirits, Inc. , 188 AD3d 1001, 1003).

A CPLR 3211 motion to dismiss an original complaint is moot when an amended complaint replaces it.

Finkelstein v. Bank of N.Y. Mellon · filed 2025-07-23

Because plaintiff's motion for leave to amend is granted in part, his original complaint will no longer be the operative complaint in this action. BNYM's pending motion to dismiss the original complaint in Finkelstein I is therefore denied as moot.

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

Cullen v. Torsiello · filed 2017-12-13(a)

In view of the foregoing, the Supreme Court properly denied, as academic, the defendants’ cross motion pursuant to CPLR 3211 (a) to dismiss the original complaint.

A pending motion to dismiss under CPLR 3211 may be applied to an amended pleading at the movant’s request.

Board of Mgrs. of the Promenade Condominium v. Eshaghpour · filed 2024-08-20

The court will apply movants’ motion to defendants’ amended answer with counterclaims and decide the motion accordingly.

A CPLR 3211(a) motion may be considered against an amended complaint when the movant elects to apply the motion to that pleading.

Stewart v. City of Mount Vernon · filed 2024-09-11(a)

Initially, we note that since the defendant, in effect, elected to apply its motion pursuant to CPLR 3211(a) to dismiss to the amended complaint, which superseded the original complaint, the Supreme Court properly considered the motion as directed against the amended complaint ( see Tueme v Lezma , 217 AD3d 715, 716; Estate of Feenin v Bombace Wine & Spirits, Inc. , 188 AD3d 1001, 1003).

Under CPLR 3211(a)(1) and (7), a missing Good Cause Eviction Law notice did not warrant dismissal where the landlord promptly sought to amend the petition and the tenant showed no prejudice.

Emerald Lofts LLC. v. Echevarria · filed 2025-05-30(a)(1), (a)(7)

Given that Petitioner has moved to amend their petition in an attempt to resolve all of the factual issues as a matter of law,and that the Court must deem the allegations of the petition as true and construe them in Petitioner's favor, affording Petitioner the benefit of "every reasonable inference," ( Cortlandt St. Recovery Corp. v. Bonderman , 31 NY3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191 [2018]), this Court finds that Respondent has failed to meet its burden seeking dismissal pursuant to CPLR 3211 (a)(1) and (7) as to the missing GCEL notice requirement.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, but that defense is waived when a defendant appears without raising it by motion or answer.

Wilmington Sav. Fund Socy., FSB v. Zimmerman · filed 2018-01-17(a)(8)

The Supreme Court properly denied those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. ... However, as the plaintiff correctly contends, the defendant waived the defense of lack of personal jurisdiction by appearing in the action without asserting an objection to jurisdiction by way of motion or in an answer ( see American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538).

Section 3211(a)(8) permits a party to move to dismiss for lack of personal jurisdiction, and a notice of appearance waives that objection absent an answer raising it or such a motion.

U.S. Bank N.A. v. Pepe · filed 2018-05-02(a)(8)

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction ( see American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v Albert , 78 AD3d 983, 984; National Loan Invs., L.P. v Piscitello , 21 AD3d 537, 537-538).

Section 3211(e) provides that a party waives a personal jurisdiction defense by seeking to modify an order without contesting service.

Matter of Smith v. Murphy · filed 2018-05-30(e)

By seeking to modify the order without contesting service, the father acknowledged the validity of the order, consented to the court's jurisdiction over him, and waived any jurisdictional objection ( see CPLR 3211[e]; Casey v Casey, 39 AD3d 579, 580; Lomando v Duncan, 257 AD2d 649, 650; Revona Realty Corp. v Wasserman, 4 AD2d 444, 448; see also Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452, 453).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, but the defense is waived if not raised in an answer or pre-answer motion.

Ulster Sav. Bank v. Fiore · filed 2018-10-03(a)(8)

We also agree with the Supreme Court's determination to deny, without a hearing, that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Nicholas for lack of personal jurisdiction. Nicholas waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss ( see MidFirst Bank v Ajala , 146 AD3d 875, 875; cf. Hopstein v Cohen, 143 AD3d 859, 860).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction, subject to waiver when the defendant appears without timely raising the objection.

JPMorgan Chase Bank, N.A. v. Soussis · filed 2018-10-31(a)(8)

The defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant appeared in the action by serving a notice of appearance, and neither she nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading ( see CPLR 320[a], [b]; U.S. Bank N.A. v Pepe , 161 AD3d 811, 812-813; Wilmington Sav. Fund Socy., FSB v Zimmerman , 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181; National Loan Invs., L.P. v Piscitello , 21 AD3d 537, 538). ... Accordingly, we agree with the Supreme Court's determination to deny those branches of the defendant's motion which were to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction ( see Wilmington Sav. Fund Socy., FSB v Zimmerman , 157 AD3d at 847).

Under CPLR 3211(e), a defendant waives lack of personal jurisdiction if it omits that defense from an earlier motion to dismiss.

Harvardsky Prumyslovy Holding, A.S. - V Likvidaci v. Kozeny · filed 2018-11-20(e)

However, Kozeny waived the defense of lack of personal jurisdiction because he is the alter ego of defendant Landlocked Shipping Co. ( see Harvardsky Prumyslovy Holding, AS. — V Likvidaci v Kozeny, 117 AD3d 77, 83 [1st Dept 2014]), and Landlocked previously moved to dismiss pursuant to CPLR 3211(a)(1) and (7), not subdivision (8) ( see CPLR 3211[e]; see also New Media Holding Co. L.L.C. v Kagalovsky, 118 AD3d 68, 77 [1st Dept 2014]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, but a defendant waives that objection by appearing without timely raising it.

HSBC Bank USA, N.A. v. Taub · filed 2019-03-27(a)(8)

Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion pursuant to CPLR 5015(a)(4) to vacate, inter alia, the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction, but the defense may be waived by appearing without asserting it.

Aurora Loan Servs., LLC v. Colleluori · filed 2019-03-27(a)(8)

We also agree with the Supreme Court's determination to deny those branches of the defendant's cross motion which were pursuant to CPLR 3211(a)(8) and/or 5015(a)(4) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The defendant's course of conduct in this action, which included appearing in the action pro se without asserting the defense of lack of personal jurisdiction, constituted a waiver of the defense of lack of personal jurisdiction ( see American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180; cf. Wells Fargo Bank, N.A. v Final Touch Interiors, LLC , 112 AD3d 813, 814).

Section 3211(a) and (e) govern dismissal for lack of personal jurisdiction and waiver of that defense when it is not timely raised.

Matter of New York City Asbestos Litig. · filed 2019-06-13(a), (e)

A party seeking dismissal on the grounds that the court does not have personal jurisdiction over it waives such objection if it is not raised in a responsive pleading or if the party, having previously moved for dismissal, failed to raise an objection to personal jurisdiction (CPLR 3211[a],[e]; see also McGowan v Hoffmeister , 15 AD3d 297 [1st Dept 2005]).

Section 3211(a)(8) allows a defendant to seek dismissal for lack of personal jurisdiction, and that objection is waived if it is not raised in an answer or such a motion.

Mid-Island Mtge. Corp. v. Johnson · filed 2019-08-07(a)(8)

"[t]he filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction" ( U.S. Bank N.A. v Pepe , 161 AD3d 811, 812).

Section 3211(a)(8) permits a defendant to move to dismiss for lack of personal jurisdiction, and failing to make that motion or plead the defense waives it after a notice of appearance.

JP Morgan Chase Bank, N.A. v. Jacobowitz · filed 2019-10-30(a)(8)

"The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction'" ( Deutsche Bank Natl. Trust Co. v Vu , 167 AD3d 844, 846, quoting U.S. Bank N.A. v Pepe , 161 AD3d 811, 812; see U.S. Bank N.A. v Adolphe , 170 AD3d 1236; JPMorgan Chase Bank, N.A. v Soussis , 165 AD3d 1240; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180; Countrywide Home Loans Servicing, LP v Albert , 78 AD3d 983). ... Under these circumstances, the defendants waived any claim that the Supreme Court lacked personal jurisdiction over them in this action.

A defendant who omits lack of personal jurisdiction from the original answer cannot raise it in a motion to dismiss unless granted leave to amend the answer.

Crosby v. Crosby · filed 2019-11-21(e)

Initially, Supreme Court erred in denying, as moot, the husband's motion for leave to amend his answer to include, as relevant here, the affirmative defense of lack of personal jurisdiction. Inasmuch as that defense was not raised in the husband's original answer, it could not be properly raised in the motion to dismiss unless and until the husband was granted leave to amend his answer ( see CPLR 3211 [e]; Iacovangelo v Shepherd , 5 NY3d 184, 187 [2005]).

A defendant who appears without objecting to personal jurisdiction by answer or motion under CPLR 3211 waives that objection.

Residential Credit Solutions, Inc. v. Guzman · filed 2019-12-24(a)(8)

Here, notices of appearance were filed by two successive attorneys who represented the defendant, and neither of the attorneys nor the defendant raised an objection to jurisdiction by way of an answer or motion to dismiss under CPLR 3211 ( see Wilmington Sav. Fund Socy., FSB v Zimmerman , 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

Section 3211(e) waives an objection to personal jurisdiction unless the defendant raises it in the answer or a pre-answer motion to dismiss, whichever comes first.

Charles Deng Acupuncture, P.C. v. Windhaven Ins. Co. · filed 2020-01-31(e)

To the extent that defendant asserts lack of personal jurisdiction, there is no need to consider defendant's claimed lack of contacts with New York since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first ( see Hatch v Tu Thi Tran , 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc. , 33 Misc 3d 141 [A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

A party waives a personal jurisdiction defense by omitting it from an earlier CPLR 3211 motion.

Baffour v. Calenda · filed 2020-04-03

We conclude that defendant waived the defense of lack of jurisdiction by failing to properly assert it in his prior CPLR 3211 motion ( see Addesso v Shemtob , 70 NY2d 689 [1987]; Remora Capital S.A. v Dukan , 175 AD3d 1219, 1221 [2019]).

A party waives a personal jurisdiction defense by failing to raise it in a CPLR 3211 motion.

Marie France Realty Corp. v. 325 E. 14th St. Corp. · filed 2020-05-04

Nor was tenant entitled to a traverse hearing, since it waived its defense of lack of personal jurisdiction by failing to raise it in its CPLR 3211 motion ( see Addesso v Shemtob , 70 NY2d 689 [1987]; Remora Capital S.A. v Dukan , 175 AD3d 1219 , 1221 [2019]).

A defendant can waive a CPLR 3211(a)(8) objection to personal jurisdiction by delaying a motion to dismiss after the action is restored to the active calendar.

LaSalle Bank, NA v. Bernard · filed 2020-06-24(a)(8)

Under these circumstances, even if the defendant's jurisdictional argument had not previously been waived by the filing of the notice of appearance, the defendant's subsequent inaction waived any claim that the court lacked personal jurisdiction over her in this action ( see Mid-Island Mtge. Corp. v Johnson , 175 AD3d 490, 491; Deutsche Bank Natl. [*2]Trust Co. v Vu , 167 AD3d 844, 846).

A defendant who appears without moving to dismiss for lack of personal jurisdiction or asserting that objection in a responsive pleading waives it.

Wells Fargo Bank, N.A. v. Abakporo · filed 2020-08-12(a)(8)

We agree with the Supreme Court's determination that the defendant waived any claim that the court lacked personal jurisdiction over him. ... Here, the defendant's attorney appeared in the action on the defendant's behalf by filing a notice of appearance on October 9, 2012, and did not move to dismiss the complaint due to lack of personal jurisdiction at that time or assert lack of personal jurisdiction in a responsive pleading ( see U.S. Bank N.A. v Adolphe , 170 AD3d 1236, 1237; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

A defendant waives an objection to personal jurisdiction by informally appearing and litigating the merits without raising the objection.

JPMorgan Chase Bank, N.A. v. Lee · filed 2020-08-19(a)(8)

Here, by opposing the plaintiff's initial motion for a judgment of foreclosure and sale on the merits and seeking adjournments of the subsequent motions, the defendant engaged in significant activity after his statutory time to answer had expired, which amounted to an informal appearance ( see HSBC Bank, USA, N.A. v Taub , 170 AD3d 1128, 1130; Aurora Loan Servs., LLC v Colleluori , 170 AD3d 1097, 1098). Consequently, the defendant waived any objection on the ground of lack of personal jurisdiction ( see HSBC Bank USA, N.A. v Taub , 170 AD3d at 1130; Aurora Loan Servs., LLC v Colleluori , 170 AD3d at 1098).

Participation in mandatory settlement conferences does not waive a CPLR 3211(a)(8) personal jurisdiction defense when it does not amount to active litigation or participation on the merits.

PennyMac Corp. v. Barbosa · filed 2020-12-02(a)(8)

We reject the plaintiff's contention that Barbosa waived his personal jurisdiction defense as a result of participation in mandatory settlement conferences ( see HSBC Bank USA, N.A. v Slone , 174 AD3d 866, 867), since that participation did not constitute active litigation of the action or participation in the action on the merits ( see id. at 867).

A defendant who appears waives a personal jurisdiction objection unless the defendant raises it in an answer or moves to dismiss under CPLR 3211(a)(8).

U.S. Rof III Legal Tit. Trust 2015-1 v. John · filed 2020-12-30(a)(8)

We agree with the Supreme Court's determination that John waived her defense of lack of personal jurisdiction when her attorney filed a notice of appearance without timely interposing any objection to the court's jurisdiction ( see JP Morgan Chase Bank v Jacobowitz , 176 AD3d 1191, 1192; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1182). Indeed, "[t]he filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction" ( U.S. Bank N.A. v Pepe , 161 AD3d 811, 812).

A defendant who appears without raising a personal jurisdiction objection in a timely motion or answer waives that ground for dismissal under CPLR 3211(a)(8).

OneWest Bank, FSB v. Lara · filed 2021-03-03(a)(8)

The Supreme Court properly denied that branch of Lara's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, since Lara waived any claim that the court lacked personal jurisdiction over him. ... Here, Lara's counsel filed a notice of appearance on or about November 24, 2015, and failed to raise any objection to personal jurisdiction at that time by either a timely motion or by interposing a timely answer ( see U.S. Bank N.A. v Adolphe , 170 AD3d 1236, 1237).

CPLR 3211(e) permits waiver of a personal jurisdiction objection based on improper service.

Municipal Credit Union v. Ferguson · filed 2021-07-09(e)

To the extent that defendant contends that the service of the summons and complaint was improper, defendant waived any claim that the Civil Court lacked personal jurisdiction over her in this action ( see CPLR 3211 [e]).

A defendant does not waive a CPLR 3211(a)(8) personal jurisdiction defense by opposing a motion to vacate a CPLR 3215(c) dismissal without appearing or participating in the merits.

U.S. Bank N.A. v. Cadoo · filed 2021-08-11(a)(8)

Accordingly, the defendants did not waive their jurisdictional defense by failing to raise the defense in their opposition to the motion to vacate the dismissal, in effect, pursuant to CPLR 3215(c) ( cf. U.S. Bank N.A. v Itshak , 189 AD3d at 920).

A defendant who appears must preserve an objection to personal jurisdiction by raising it in an answer or moving to dismiss under CPLR 3211(a)(8).

US Bank N.A. v. Chkifati · filed 2022-03-30(a)(8)

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction ( see Mid-Island Mtge. Corp. v Johnson , 175 AD3d 490, 491; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

An appearance waives a personal-jurisdiction defense unless the defendant raises the objection by motion or in the answer.

Deutsche Bank Natl. Trust Co. v. Muzac · filed 2022-05-04(a)(8)

An appearance of the defendant is equivalent to personal service of the summons upon him or her, unless an objection to jurisdiction pursuant to CPLR 3211(a)(8) is asserted by motion or in the answer ( see Wells Fargo Bank, N.A. v Abakporo , 186 AD3d 652).

CPLR § 3211(a)(8) and (e) provides that a personal jurisdiction defense is waived when a defendant appears but omits it from the answer.

Peralta v. City of New York · filed 2022-06-02(a)(8), (e)

A reasonable excuse was proffered by plaintiff for not seeking an extension of time to properly serve the City with a second summons and complaint, where the City had already appeared in the action by service of an answer that did not assert an affirmative defense of lack of personal jurisdiction (CPLR 3211[a][8], [e]), and thus the City waived the defense ( see Urena v NYNEX, Inc. , 223 AD2d 442, 443-444 [1st Dept 1996]; Brown v Doxsee Sea Clam, Co ., 231 AD2d 440, 443 [1st Dept 1996]).

Section 3211(e) requires a lack of personal jurisdiction defense to be raised in the first responsive pleading or it is waived.

English v. Avon Prods., Inc. · filed 2022-06-02(e)

Furthermore, Shulton did not waive its challenge to the court's jurisdiction over it, as the defense was raised in Shulton's first responsive pleading (CPLR 3211[e]).

A party waives an objection to personal jurisdiction under CPLR 3211(a)(8) when counsel files a notice of appearance without raising the objection.

Wilmington Trust Co. v. Valdivieso · filed 2022-07-27(a)(8)

Here, the defendant waived his objection to personal jurisdiction when his counsel filed a notice of appearance in September 2015 and did not raise any jurisdictional objection.

A defendant who files a notice of appearance waives an objection to personal jurisdiction unless an answer raises it or the defendant moves to dismiss under CPLR 3211(a)(8).

U.S. Bank N.A. v. Black · filed 2022-10-12(a)(8)

"The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction" ( U.S. Bank N.A. v Pepe , 161 AD3d 811, 812; see U.S. Rof III Legal Tit. [*2]Trust 2015-1 v John , 189 AD3d 1645, 1649).

A defendant who appears waives a CPLR 3211(a)(8) personal jurisdiction objection by failing to raise it in a timely motion or answer, even if the appearance purports to be limited to a foreclosure settlement conference.

HSBC Bank USA N.A. v. Mohammed · filed 2022-10-19(a)(8)

Since the defendant had waived the defense of lack of personal jurisdiction by failing to timely assert it, that defense was not a proper basis on which to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against the defendant ( see U.S. Bank N.A. v Chkifati , 203 AD3d at 1214-1215; U.S. Bank N.A. v Pepe , 161 AD3d at 812-813). ... Accordingly, the Supreme Court should have denied those branches of the defendant's motion which were, in effect, to vacate the order and judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

A defendant waives an objection to personal jurisdiction by appearing through counsel and waiting more than a year and a half to raise it.

Bank of N.Y. Mellon Trust Co., N.A. v. Barone · filed 2022-10-26(a)(8)

Contrary to the defendant's contention, he waived his objection to personal jurisdiction when his counsel filed a notice of appearance in the action and did not raise any jurisdictional objection for more than a year and a half ( see Wilmington Trust Co. v Valdivieso , 207 AD3d 783; JP Morgan Chase Bank v Jacobowitz , 176 AD3d 1191, 1192-1193; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

A defendant waives a personal-jurisdiction defense by omitting it from the answer.

South Shore Adj. Co., LLC v. Nyekan · filed 2022-12-02(e)

Moreover, by omitting an objection to personal jurisdiction in the answer she filed in person in 2009, defendant waived the defense of personal jurisdiction ( see CPLR 3211 [a] [8]; [e]; see also Iacovangelo v Shepherd , 5 NY3d 184, 185 [2005]).

A motion to dismiss under CPLR 3211(a)(8) for lack of personal jurisdiction can preserve that objection when an attorney files a notice of appearance.

Bank of Am., N.A. v. City of New York Dept. of Hous. Preserv. & Dev. · filed 2022-12-07(a)(8)

The filing of a notice of appearance in an action by a party's attorney may serve as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction ( see U.S. Bank N.A. v Pepe , 161 AD3d 811, 812; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

Section 3211(e) allows defendants to preserve a personal jurisdiction defense in their verified answers.

P.A. v. New York & Presbyt. Hosp. · filed 2022-12-08(e)

In any event, we find defendant doctors complied with CPLR 3211(e) and preserved their jurisdictional defense in their verified answers.

CPLR 3211(e) treats a personal jurisdiction defense omitted from an answer as waived, but the defense may be raised in an answer amended by leave of court.

Deutsche Bank Natl. Trust Co. v. Groder · filed 2023-07-12(e)

Although the defendant did not assert lack of personal jurisdiction in her answer and thereby waived this defense under CPLR 3211(e), such a defense can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) ( see Citimortgage, Inc. v Rogers , 203 AD3d 1125, 1126; Deutsche Bank Trust Co. Ams. v Cox , 110 AD3d 760, 762).

A defendant who appears without raising lack of personal jurisdiction in an answer or pre-answer motion to dismiss may waive that defense and lose the ability to seek dismissal on that ground later.

NYCTL 1996-1 Trust v. 5200 Enters. Ltd. · filed 2023-08-09(a)

The Supreme Court properly denied that branch of the defendant's cross-motion which was pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale, and thereupon, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it on the ground that the court lacked personal jurisdiction. ... Thus, the court properly concluded that the defendant had waived the defense of lack of personal jurisdiction ( see HSBC Bank USA, N.A. v Taub , 170 AD3d at 1129-1130).