N.Y. C.P.L.R. § 3211

A defendant who appears and litigates without asserting a jurisdictional objection waives the defense of lack of personal jurisdiction under CPLR 3211(a)(8).

U.S. Bank N.A. v. Jong Shin · filed 2024-02-28(a)(8)

Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions, inter alia, to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction ( see HSBC Bank USA, N.A. v Whitelock , 214 AD3d 855, 856; JPMorgan Chase Bank, N.A. v Lee , 186 AD3d 685, 686-687; Taveras v City of New York , 108 AD3d at 617-618). Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate her default in answering the complaint and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

A defendant preserves a lack-of-personal-jurisdiction defense by raising it in an answer or pre-answer motion and may cure an omission before the time to amend the answer without leave expires.

Manfredo v. 100-106 LLC · filed 2024-02-29(e)

Although such an affirmative defense is waived if not raised in the answer or a pre-answer motion to dismiss ( see CPLR 3211[e]), "a defendant who omits from an answer a defense based on lack of personal jurisdiction has not waived the defense if the defendant corrects the omission before the time to amend the answer without leave of court has expired" ( Iacovangelo v Shepherd , 5 NY3d 184, 185 [2005]; see also Brafman & Assoc., P.C. v Balkany , 190 AD3d 453, 453 [1st Dept 2021]). Here, Salon asserted lack of personal jurisdiction in its June 6, 2022 amended answer, thus it did not waive the affirmative defense, whether included in the original answer or not.

Section 3211(e) provides that a defense to personal jurisdiction is waived if it is not raised in an answer or prior motion to dismiss.

179 St Realty LLC v. Morales · filed 2024-05-23(e)

The court does not find that respondent has waived a defense to personal jurisdiction by executing a stipulation that has now been vacated. Respondent has not answered or filed any prior motion to dismiss ( see CPLR § 3211(e)).

In a consumer debt collection action, § 3211(e) permits a defendant to raise a personal jurisdiction defense in an amended answer despite omitting it from the original answer.

American Express Natl. Bank v. Kokolli · filed 2024-12-24(e)

In the instant matter, the Court finds that Defendant did not waive her personal jurisdiction defense when she failed to assert same in her original Answer dated January 29, 2024. The plain language of CPLR 3211(e), as amended pursuant to Senate Bill S153 signed into law on November 8, 2021, expressly provides that a consumer, who is a named defendant in an action to collect a debt, may amend the responsive pleading to add a defense on the ground specified in paragraph eight of CPLR 3211(a), to wit lack of personal jurisdiction.

Section 3211(e) treats a personal jurisdiction defense as waived if the defendant fails to move for judgment on that basis in time.

2785 Broadway LLC v. Harmony Uptown Cleaners Corp. · filed 2025-01-06(e)

Finally, defendants have waived the affirmative defense of lack of personal jurisdiction by failing to timely move for judgment on that basis (See CPLR 3211[e]).

A party waives a lack-of-personal-jurisdiction objection by failing to raise it in the answer.

Hernandez v. Saintelus · filed 2025-02-07(e)

To the extent that tenant argued in her motion that the default final judgment should be vacated due to a lack of personal jurisdiction, she waived this contention by not raising it in her answer ( see CPLR 3211 [e]; U.S. Bank N.A. v Cadoo , 197 AD3d 588, 589 [2021]; Citi Land Servs., LLC v McDowell , 30 Misc 3d 145[A], 2011 NY Slip Op 50387[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

A personal jurisdiction defense waived under CPLR 3211(e) may be revived by leave to amend an answer, absent prejudice or conduct showing irrevocable consent to jurisdiction.

Fairmont 88 LLC v. Fang Yu · filed 2025-02-21(e)

However, in the Second Department, where this court sits, the Appellate Division has recently concluded that a waived personal jurisdiction defense may be revived by amendment upon leave of court, even after the period for amendment as of right has expired. ... Accordingly, the court finds that Respondent did not waive a personal jurisdiction defense by virtue of her pro se answer. In the absence of any prejudice or other conduct that would constitute an irrevocable consent to the jurisdiction of this court, Respondent's motion to interpose an amended answer is granted, and the proposed answer is deemed timely filed and served in its entirety.

A defendant may waive a CPLR 3211(a)(8) objection to personal jurisdiction by participating in the action without preserving the defense.

U.S. Bank Trust N.A. v. Gordon · filed 2025-03-05(a)(8)

Here, the defendant engaged in significant activity after her statutory time to answer had expired sufficient to warrant a finding that she had acknowledged the jurisdiction of the court without preserving her objection based on improper service ( see Globe Trade Cap., LLC v Hoey , 199 AD3d 769, 770; Deutsche Bank Natl. Tr. Co. v Hall , 185 AD3d 1006, 1010; cf. Bayview Loan Servicing, LLC v Zelyakovsky , 202 AD3d 738, 741).

CPLR 3211(e) waives a personal jurisdiction defense when a pre-answer motion to dismiss omits it.

Evans v. Evans · filed 2025-04-14(e)

As an initial matter, Respondent consented to this court's jurisdiction and waived any personal jurisdiction defense by making a pre-answer motion to dismiss that did not challenge personal jurisdiction ( see CPLR 3211(e); GMAC v Coombs , 191 AD3d 37 [2d Dept 2020]; Addesso v Shembtov , 70 NY2d 689 [1987]), and separately by interposing the unrelated counterclaim of harassment ( see Halberstam v Kramer , 39 Misc 3d 126 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; ROL Realty Co. LLC v. Gordon , 29 Misc 3d 139 [App Term, 1st Dept 2010]).

A defendant waives an objection to personal jurisdiction by appearing and moving to dismiss without raising the defense.

Matter of Weiss v. County of Suffolk · filed 2025-04-16(e)

Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, "appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss" ( Cadlerock Joint Venture, L.P. v Kierstedt , 119 AD3d 627, 628; see CPLR 320[b], 3211[e]; Bayview Loan Servicing, LLC v Zelyakovsky , 202 AD3d 738, 741).

A lack of personal jurisdiction defense is waived unless raised in the answer or a preanswer motion to dismiss, whichever comes first.

Eastern States Well & Pump Servs., LLC v. Martin · filed 2025-06-05(e)

As correctly noted in Supreme Court's (Jordan, J.) January 2023 order, which was the law of the case, a defense based on lack of personal jurisdiction "is waived unless it is raised in the answer or in a preanswer motion to dismiss, whichever comes first " ( Hatch v Tu Thi Tran , 170 AD2d 649, 650 [2d Dept 1991] [emphasis added]; see CPLR 3211 [e]).

A defendant waives a CPLR 3211(a)(8) personal jurisdiction objection by litigating the merits and seeking affirmative relief without raising it.

BAC Home Loans Servicing, L.P. v. Davis · filed 2025-09-10(a)(8)

Here, the defendants waived the defense of lack of personal jurisdiction by opposing a prior motion by the plaintiff for leave to enter a default judgment against them on the ground, among others, that the plaintiff failed to establish the merits of its cause of action against them and by thereafter opposing another prior motion by the plaintiff and filing a cross-motion for affirmative relief, all without asserting an objection to jurisdiction ( see Bank of N.Y. Mellon v Taylor , 230 AD3d 457, 458-459; U.S. Bank N.A. v Jong Shin , 224 AD3d 933, 935; HSBC Bank USA, N.A. v Whitelock , 214 AD3d at 856; HSBC Bank USA, N.A. v Taub , 170 AD3d at 1129).

A defendant waives a CPLR 3211(a)(8) objection to personal jurisdiction by informally appearing at status conferences and stipulating to extend the plaintiff's time to move for an order of reference.

HSBC Bank USA, N.A. v. Wu · filed 2025-10-23(a)(8)

Defendant's motion to dismiss for lack of personal jurisdiction was properly denied, as defendant waived his objection by informal appearance at status conferences and stipulating to extend HSBC's time to move for an order of reference (CPLR 3211[a][8]; see Taveras v City of New York , 108 AD3d 614, 617 [2d Dept 2013]; cf. Bayview Loan Servicing, LLC v Zelyakovsky , 202 AD3d 738, 741 [2d Dept 2022]).

Section 3211(e) waives a personal jurisdiction objection when the defendant fails to raise it in the answer or move to dismiss on that ground within sixty days.

HSBC Bank USA, N.A. v. Tobar · filed 2025-12-03(e)

Defendant Tobar has not presented any evidence to rebut this presumption and did not move to dismiss on this ground within sixty (60) days of filing his Answer. Thus, pursuant to CPLR § 3211(e), Defendant Tobar has waived this challenge and jurisdiction is proper.

A defendant who informally appears on the merits without preserving a jurisdictional objection waives that objection and cannot obtain dismissal under CPLR 3211(a)(8).

Bharath v. Sitaram · filed 2026-02-18(a)(8)

Under these circumstances, the defendant waived his jurisdictional objection through his informal appearance ( see generally Travelon, Inc. v Maekitan , 215 AD3d 710, 713; Taveras v City of New York , 108 AD3d 614, 617). Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 5015(a)(4) to vacate the renewal judgment and pursuant to CPLR 3211(a)(8) to dismiss the action.

A defendant who files a notice of appearance waives an objection to personal jurisdiction unless it raises the objection in an answer or moves to dismiss on that ground.

NYCTL 1998-2 Trust v. Grace Christian Church · filed 2026-05-13(e)

Here, since it is undisputed that Goodman filed a notice of appearance on behalf of the Church and that the Church failed, at that time, to file an answer raising the defense of lack of personal jurisdiction or to make a pre-answer motion to dismiss on that ground, the Church waived the defense of lack of personal jurisdiction (see Bank of N.Y. Mellon v Taylor, 230 AD3d at 458; Wells Fargo Bank, N.A. v Abakporo, 186 AD3d at 653).

Section 3211(e) waives a personal jurisdiction defense omitted from the original answer; an amended complaint does not revive it.

Sanchez v. L.L.H. Recycled Aggregates · filed 1990-04-06(e)

Based on the foregoing, the court finds that the defendant herein, L.L.H. Recycled Aggregates, having waived the jurisdictional defense in the first instance, cannot raise it in an amended answer.

A defendant who informally appears by participating in the litigation may waive an objection to personal jurisdiction under CPLR 3211(a)(8).

Taveras v. City of New York · filed 2013-07-10(a)(8)

Moreover, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against Ilienko and Sewell for lack of personal jurisdiction.

A defendant does not waive a CPLR 3211(a)(8) personal jurisdiction defense by attending a mandatory foreclosure settlement conference solely as another defendant’s representative, even after failing to timely appear or answer.

Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC · filed 2013-12-18(a)(8)

Contrary to the Supreme Court’s conclusion, the appellants, Hilda Friesen, also known as Hilda L. Friesen, and Anton Neureiter, also known as Anton E. Neureiter, did not waive the defense of lack of personal jurisdiction when, after failing to timely appear or answer the complaint, they appeared at a mandatory foreclosure settlement conference (see CPLR 3408; Matter of Sessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1165-1166 [2007]). There is nothing in the record to indicate that when they appeared they did so in any other capacity than as the representatives of Final Touch, Inc., the only defendant to have timely answered the complaint (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]; cf. McGowan v Bellanger, 32 AD2d 293 [1969]).

A party may waive a personal jurisdiction defense through conduct that consents to the court’s jurisdiction, even after raising the defense in an answer.

Starla D. v. Jeremy E. · filed 2014-10-16(e)

Personal jurisdiction is — under both New York and Alabama law — a waivable defense (see CPLR 3211 [a] [8]; [e]; Alabama Rules of Civ Proc rule 12 [h] [1]). ... Under these circumstances, we are satisfied that respondent not only waived his right to assert that the Alabama court lacked personal jurisdiction over him but, indeed, expressly consented thereto.

Section 3211(a)(8) permits a motion to dismiss for lack of personal jurisdiction; a defendant who appears without making that motion or raising the objection in an answer waives it.

Deutsche Bank Natl. Trust Co. v. Vu · filed 2018-12-19(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 Wilmington Sav. Fund Socy. FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984).

A defendant who appears waives an objection to personal jurisdiction under CPLR 3211(a)(8) unless the objection is raised by a timely motion or answer.

U.S. Bank N.A. v. Adolphe · filed 2019-03-27(a)(8)

"[A]n appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided in rule 3211" (CPLR 320[b]). Here, Adolphe's counsel filed a notice of appearance, and failed to raise any objection to personal jurisdiction at that time by either a timely motion or by interposing a timely answer ( see American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181-1182).

Under CPLR 3211(e), a defendant may waive a personal-jurisdiction defense by allowing wage garnishment payments for over a year before moving to vacate a default judgment.

Platinum Recovery Servs., Inc. v. Reid · filed 2019-11-22(e)

Here, defendant waived his defense of lack of personal jurisdiction by virtue of payments that had been made through the garnishment of his wages, as he waited over a year after the wage garnishment had commenced before he moved to vacate the default judgment ( see Cadlerock Joint Ventures, L.P. v Mitiku , 45 AD3d at 453; LR Credit 10, LLC v Parrado , 48 Misc 3d 134 [A], 2015 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Section 3211(e) requires a defendant to move to dismiss for improper service within 60 days after serving an answer, unless undue hardship warrants an extension.

HSBC Bank USA, N.A. v. Caesar · filed 2026-05-06(e)

Pursuant to CPLR 3211(e), the defendants were required to move to dismiss the complaint for lack of proper service within 60 days following the service of their answer, in 2013, unless an extension of time was warranted on the ground of undue hardship.

CPLR 3211(e) requires a motion to dismiss for lack of personal jurisdiction to be made within 60 days after serving the pleading.

Hamidu v. Sands · filed 2026-03-18(e)

Pournaras made the instant motion on October 31, 2025, and, thus, “within 60 days after serving the pleading,” as required by CPLR 3211(e).

Section 3211(e) treats an objection to improper service as waived when a defendant fails to preserve it in a responsive pleading.

Hartford Ins. Co. of the Midwest v. Strekte Corp. · filed 2024-10-10(e)

As Jensen and Rigerman neither filed their respective dismissal motions until three and a half years later on September 14, 2023, nor preserved such objection in their answer, their objections to service are deemed waived.

A defendant who pleads lack of personal jurisdiction based on improper service must move to dismiss on that ground within 60 days after the responsive pleading or the defense must be dismissed.

Liberty Events, LLC v. 175 Van Dyke LLC · filed 2024-09-26(e)

An affirmative defense of lack of personal jurisdiction due to improper service, as is alleged here, may be pleaded in a responsive pleading, but defendants must then move to dismiss on that ground within 60 days thereafter (CPLR 3211 [e]). Defendants filed their answer and counterclaims on May 20, 2024 (NYSCEF Doc. No. 58), but failed to move to dismiss for lack of jurisdiction within the required time period, and therefore this affirmative defense must be dismissed.

Section 3211(e)'s time limitation for objecting to improper service does not apply when a defendant moves to dismiss before serving an answer.

Desselle v. Hills · filed 2023-12-22(e)

Contrary to plaintiff's contention, defendants were not subject to the time limitation set forth in CPLR 3211 (e) inasmuch as they did not serve an answer prior to making their motion ( cf. Woleben v Sutaria , 34 AD3d 1295, 1296 [4th Dept 2006]).

CPLR 3211(a) permits dismissal of a complaint against a defendant who was not properly served with the summons and complaint.

Chase Home Fin., LLC v. Berger · filed 2020-07-29(a)

Thereafter, the defendant moved to vacate, among other things, an order of reference dated April 6, 2010, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him on the ground, inter alia, that he had never been served with the summons and complaint. ... Likewise, we agree with the court's determination granting the defendant's motion, inter alia, to dismiss the complaint insofar as asserted against him on the ground that he had not been properly served with the summons and complaint.

Section 3211(e) waives an improper-service objection when a defendant fails to preserve it in a pleading or timely move for judgment on that ground.

Pizarro v. Langer Transportation Corporation · filed 2021-11-16(e)

According to CPLR 3211(e), “an objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading . . .” CPLR § 3211(e). ... Accordingly, that defense cannot now be raised to reset the removal clock.

CPLR 3211(e) waives an improper-service objection raised in an answer if the defendant does not move on that ground within 60 days, unless the court extends the time for undue hardship.

Bank of N.Y. Mellon v. Shurko · filed 2022-10-26(e)

Although the defendant asserted in his answer an affirmative defense alleging lack of personal jurisdiction, he did not move to dismiss the complaint insofar as asserted against him on that ground until more than 60 days after serving his answer. Moreover, the defendant did not assert any undue hardship that would have prevented him from making that motion within the statutory time period ( see U.S. Bank N.A. v Donovan , 189 AD3d at 919). Since the motion was untimely ( see Wells Fargo Bank, N.A. v Gross , 202 AD3d at 885; U.S. Bank N.A. v Donovan , 189 AD3d at 919), the Supreme Court, upon reargument, in effect, properly denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

A defendant waives an improper-service objection by failing to move to dismiss within 60 days after asserting the defense.

Mariette v. Amber Ct. of Pelham Gardens LHCSA, LLC · filed 2023-02-02(e)

Moreover, defendant did not move to dismiss the complaint for improper service within 60 days of assertion of the defense, thus any objection based on service was waived ( see CPLR 3211[e]).

CPLR 3211(e) waives an improper-service defense raised in an answer unless the defendant moves to dismiss on that ground within 60 days, absent an extension for undue hardship.

Wilmington Trust, N.A. v. Meyerhoeffer · filed 2023-08-02(e)

Here, the defendants waived their defense of lack of personal jurisdiction on the basis of improper service of process, as they failed to move to dismiss on that ground within 60 days after serving their answer, and further failed to satisfy the strict undue hardship standard ( see CPLR 3211[e]; U.S. Bank N.A. v Roque , 172 AD3d at 950; Deutsche Bank Natl. Trust Co. v Acevedo , 157 AD3d at 861; Wiebusch v Bethany Mem. Reform Church , 9 AD3d 315, 315).

CPLR 3211(e) requires a party who raises improper service in a pleading to move for judgment on that ground within 60 days, unless the court extends the time for undue hardship.

US Bank, N.A. v. Orlando · filed 2024-04-17(e)

'[a]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship' ( Wilmington Trust, N.A. v Meyerhoeffer , 219 AD3d 549, 553, quoting U.S. Bank N.A. v Roque , 172 AD3d 948, 950 [internal quotation marks omitted]).

A defendant who appears and answers without raising a personal jurisdiction defense waives an objection to defective service.

Wilmington Savings Fund Socy., FSB v. Mallikarjun · filed 2024-04-29(e)

As such, a claim that service upon Board was defective was waived (CPLR §3211 [e]).

Section 3211(e) requires a motion challenging personal jurisdiction for defective service to be made within 60 days after the answer.

Condominium Bd. of the 10 Nevins St. Condominium v. Qeliqi · filed 2024-06-28(e)

To the extent defendant argues that the court lacks personal jurisdiction over him due to defective service of process, he failed to make a motion on such ground within the 60 days following his answer as required by statute (CPLR 3211 [e]).

CPLR 3211(e) requires a respondent to move to dismiss for improper service within 60 days after serving its responsive pleading or waive the objection.

Park Row 23 Owners LLC v. Jiha · filed 2024-07-15(e)

CPLR 3211(e) requires a respondent to move for judgment dismissing the petition for improper service within 60 days after serving its responsive pleading, otherwise such relief is waived. ... Accordingly, Respondent waived any objection to defective service and dismissal pursuant to CPLR 3211(e) is denied.

A defendant who pleads improper service must move for judgment on that ground within 60 days of serving the pleading unless the court extends the time for undue hardship; rejection of the answer does not extend the deadline.

Home Heating Oil Corp. v. Brown · filed 2025-04-18(e)

"[A]n objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211 [e]). Defendant has not offered anything in the way of undue hardship as an excuse for not making the motion grounded on improper service until more than a year after serving and filing his answer ( see Bank of NY Mellon v Shurko , 209 AD3d 949 [2d Dept 2022]). Therefore, the motion must be denied as untimely ( see Wells Fargo Bank, N.A. v Gross , 202 AD3d 882 [2d Dept 2022]). The fact that the answer was rejected does not extend the deadline for making the motion predicated on improper service ( see U.S. Bank Natl. Assoc. v Donovan , 189 AD3d 918).

Section 3211(e) waives an improper-service defense if the defendant does not move for judgment on that ground within 60 days after serving the answer and does not show undue hardship.

Bank of Am., N.A. v. McKeon · filed 2025-08-13(e)

Here, the defendant waived the defense of lack of personal jurisdiction on the basis of improper service of process as he failed to move for judgment on that ground within 60 days after serving his answer and otherwise failed to show undue hardship ( see CPLR 3211[e]).

CPLR 3211(e) requires a motion to dismiss for lack of personal jurisdiction based on improper service within sixty days after serving the pleading; an untimely objection is waived.

Re-Steel Distrib. Co., Inc. v. New Major Bldg. Supply, LLC · filed 2026-02-26(e)

CPLR 3211(e) clearly provides that this type of motion to dismiss has to be brought “within sixty days after serving the pleading.” For some unexplained reason, defendant waited years after filing its answer (the answer was filed on November 14, 2023) to raise a lack of proper service. Defendant obviously waived this objection years ago.

CPLR 3211(e) waives an improper-service objection if the defendant fails to move on that ground within 60 days after serving the pleading, unless the court extends the time for undue hardship.

Cleveland v. Mount Sinai Health Sys., Inc · filed 2026-02-26(e)

Under this statute, an objection to improper service is waived if the objecting party fails to move for judgment on that ground within sixty days of serving the pleading, unless the court extends the time upon a showing of "undue hardship." ... Accordingly, that branch of the motion seeking dismissal for lack of personal jurisdiction is denied.

Section 3211(e) waives an improper-service defense if the defendant does not move to dismiss on that ground within 60 days of answering.

119 Baxter St. CC LLC v. Castro · filed 2026-03-17(e)

The Guarantor waived improper service as a defense by failing to move to dismiss the complaint upon that ground within 60 days of her answer (see CPLR 3211[e]; Worldcom, Inc. v Dialing Loving Care, 269 AD2d 159 [1st Dept 2000]).

Under CPLR 3211(a)(8), service obtained through deception is not invalid when the respondent entered New York voluntarily.

Hammett v. Hammett · filed 1980-02-21(a)(8)

Order, Family Court, New York County, entered August 27, 1979, denying respondent-appellant’s motion to dismiss the petition on the ground of improper service (CPLR 3211, subd [a], par 8) is affirmed, with costs. ... While the affidavits presented below raise a factual issue whether petitioner used deception to effectuate service, no real issue is raised whether respondent was voluntarily in New York at the time of service, thereby rendering the deception issue academic.

A party waives an objection to the timeliness of a CPLR 3211(a) cross-motion to dismiss by accepting it without objection.

Matter of Schneider v. Board of Educ. of the City Sch. Dist. of the City of N.Y. · filed 2026-02-11(a)

Initially, under the circumstances of this case, the petitioner waived her objections to the timeliness of the respondents' cross-motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition by accepting it without any objection ( see Oparaji v Duran , 18 AD3d 725, 725-726; Ligotti v Wilson , 287 AD2d 550, 551).

Section 3211(d) permits disclosure limited to facts bearing on jurisdiction before a motion to dismiss for lack of jurisdiction is resolved.

Masterson v. P & H Harnischfeger Corp. · filed 1975-03-25(d)

However, the majority would afford to third-party plaintiff, Harnischfeger Corporation, the right to disclosure proceedings limited to those facts bearing upon jurisdiction, including whether or not appellant is insured by a New York carrier or carriers.

Section 3211(d) permits disclosure when a plaintiff has made a sufficient start in establishing jurisdiction.

Robins v. Procure Treatment Ctrs., Inc. · filed 2018-01-25(d)

Plaintiff made a "sufficient start" in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3211(d) ( see Peterson v Spartan Indus. , 33 NY2d 463, 467 [1974]).

Section 3211(a)(5) permits a court to dismiss a claim when it is barred by res judicata or collateral estoppel.

Mazzurco v. Astoria Fed. Sav. & Loan Assn. · filed 2018-01-31(a)(5)

Accordingly, the Supreme Court properly granted those branches of the motions of Astoria and the PII SAM defendants and the cross motion of Yeh which were pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them, and denied Mazzurco's cross motions for leave to amend the complaint ( see Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc ., 16 AD3d 403, 404-405; Slavin v Fischer , 160 AD2d 934, 934-935).

Section 3211(a)(5) permits dismissal when a claim is barred by collateral estoppel, and section 3211(a)(7) permits dismissal for failure to state a cause of action.

Johnson v. Department of Educ. of City of N.Y. · filed 2018-02-21(a)(5), (7)

These findings are entitled to collateral estoppel effect and, therefore, the Supreme Court properly directed the dismissal of so much of the complaint as alleged employment discrimination on the basis of age. Further, the plaintiff's allegations of retaliation and disparate treatment were conclusory in nature and, therefore, insufficient to state a cause of action ( see Matter of England v New York City Dept. of Envtl. Protection , 150 AD3d 996, 997; Askin v Department of Educ. of the City of N.Y. , 110 AD3d 621, 622). Accordingly, the defendants' motion to dismiss the complaint was properly granted.

Section 3211(a)(5) permits dismissal when a claim is barred by res judicata.

Archibald v. Wells Fargo Bank, N.A. · filed 2018-11-07(a)(5)

Accordingly, we agree with the determination of the Supreme Court granting Wells Fargo's motion to dismiss the complaint on the ground that the action was barred by the doctrine of res judicata ( see CPLR 3211[a][5]; Mazzurco v Astoria Fed. Sav. & Loan Assn. , 157 AD3d at 944; Osborne v Rossrock Fund II, L.P. , 82 AD3d 727, 728).

Section 3211(a)(5) permits dismissal when the claim is barred by res judicata.

Mooney v. Manhattan Occupational, Physical & Speech Therapies, PLLC · filed 2018-11-28(a)(5)

Contrary to the plaintiff's contention, the Supreme Court did not err in finding that this action was barred by the doctrine of res judicata. ... Accordingly, we agree with the Supreme Court's determination to grant that branch of MOPST's motion which was to dismiss the complaint as barred by the doctrine of res judicata, and deny the plaintiff's cross motion.

CPLR 3211(a)(5) permits dismissal when a cause of action is barred by collateral estoppel, and CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action.

Miller v. Falco · filed 2019-03-06(a)(5), (a)(7)

We agree with the Supreme Court's determination granting those branches of Falco's motion which were pursuant to CPLR 3211(a)(5) to dismiss the first and second causes of action on the ground that they were barred by the doctrine of collateral estoppel ( see Kaufman v Eli Lilly & Co. , 65 NY2d at 456). ... We also agree with the Supreme Court s determination granting that branch of Falco's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, which sought to impose a constructive trust, because the complaint fails to allege the existence of a confidential or fiduciary relationship between Miller and the decedent, a promise between Miller and the decedent, or a transfer in reliance upon promise between them ( see Silberstang v Biderman-Gross , 134 AD3d 693, 694-695; Igneri v Igneri , 125 AD3d 813, 814; County of Nassau v Expedia, Inc. , 120 AD3d 1178, 1181).

Section 3211(a)(5) permits dismissal of a cause of action based on res judicata or collateral estoppel.

23 E. 39th St. Dev., LLC v. 23 E. 39th St. Mgt. Corp. · filed 2019-05-15(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata ( see Williams v City of Yonkers , 160 AD3d 1017, 1018; Rudovic v Rudovic , 131 AD3d 1225, 1227).

Section 3211(a)(5) permits dismissal when a claim is barred by res judicata.

Wells Fargo Bank, N.A. v. Enbar · filed 2019-06-12(a)(5)

We agree with Legum that the Supreme Court should have granted that branch of his cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata.

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

Jamal v. Caroline Garden Tenants Corp. · filed 2019-06-12(a)(5)

We agree with the Supreme Court's determination to grant that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of collateral estoppel. The defendant satisfied its burden by demonstrating that the complaint in this action merely repeated allegations that had already been litigated and decided in two prior actions. In opposition, the plaintiff failed to sustain his burden of "demonstrating the absence of a full and fair opportunity to contest the prior determination[s]" ( Buechel v Bain , 97 NY2d 295, 304; see Dafna v Homapour , 153 AD3d 496, 496).

Section 3211(a)(5) permits dismissal when a defense such as collateral estoppel bars the claim.

Dalton v. Dalton · filed 2019-07-03(a)(5)

Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her.

Section 3211(a)(5) permits dismissal of claims barred by res judicata.

Manko v. Gabay · filed 2019-08-07(a)(5)

We agree with the Supreme Court's determination to grant that branch of the Gabay defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as barred by the doctrine of res judicata, based upon the dismissal, on the merits, of the complaints insofar as asserted against them in the four prior actions.

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

Puryear v. Hutchinson · filed 2019-08-07(a)(5)

Here, Parkway failed to establish that this action is barred by the doctrine of res judicata or by the doctrine of collateral estoppel ( see Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 601; Farren v Lisogorsky , 87 AD3d 713, 714). Parkway did not demonstrate that the plaintiff, who was not a party to the prior federal action, was in privity with Hutchinson. Additionally, Parkway failed to establish that there was a determination on the merits in the prior federal action. Moreover, Parkway did not show that the issue of the plaintiff's alleged ownership interest in the subject property was necessarily decided in the prior federal action. Accordingly, the Supreme Court should have denied that branch of Parkway's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it.

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

Fowler v. Indymac Bank, FSB · filed 2019-10-02(a)(5)

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint under the doctrine of collateral estoppel ( see DeMartino v Lomonaco , 155 AD3d at 687; Hanspal v Washinton Mut. Bank , 153 AD3d 1329, 1331-1332; 74 Eldert, LLC v Sharp , 138 AD3d at 820; MLCFC 2007-9 ACR Master SPE, LLC v Camp Waubeeka, LLC , 123 AD3d 1269, 1272-1273).

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

Sultan v. Zhu · filed 2020-02-25(a)(5)

The IAS court also correctly determined that the remainder of the allegations underlying plaintiff's malpractice claims were barred by the doctrines of res judicata and collateral estoppel pursuant to CPLR 3211(a)(5) ( see e.g. Karakash v Trakas , 163 AD3d 788 [2d Dept 2018]; Vera v Low Income Mktg. Corp. , 145 AD3d 509, 510 [1st Dept 2016]).

CPLR 3211(a)(5) permits dismissal on res judicata grounds when a prior foreclosure judgment bars the claims asserted.

Pusey v. Morales · filed 2020-03-04(a)(5)

We agree with the Supreme Court's determination to grant that branch of Elizon's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against HSBC as barred by the doctrine of res judicata.

Section 3211(a)(5) permits dismissal of a cause of action on res judicata and collateral estoppel grounds.

Clark v. Deutsche Bank Natl. Trust Co. · filed 2020-04-29(a)(5)

Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action to quiet title based on the doctrines of res judicata and collateral estoppel.

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

Buffalo Emergency Assoc., LLP v. Aetna Health, Inc. · filed 2021-06-11(a)(5)

Plaintiffs appeal from an order that granted defendants' motion to dismiss the complaint with prejudice pursuant to, inter alia, CPLR 3211 (a) (5). ... Contrary to plaintiffs' contention on appeal, Supreme Court properly granted defendants' motion with respect to the first and second causes of action on the ground that they are barred by res judicata and collateral estoppel.

A party seeking dismissal under CPLR 3211(a)(5) based on res judicata or collateral estoppel must establish that the prior judgment binds the opposing party, including any claimed privity.

Bravo v. Atlas Capital Group, LLC · filed 2021-07-21(a)(5)

The party asserting the conclusive effect of a prior judgment has the burden to establish it ( see id. at 275). Here, Atlas failed to demonstrate that the Supreme Court's determination in the August 2015 order in the prior action against Eastgate was dispositive in this action against it by virtue of Atlas's privity with Eastgate.

Under CPLR 3211(a)(5), insurance coverage issues do not establish collateral estoppel or res judicata barring a negligence action.

A.M. v. Holy Resurrection Greek Orthodox Church of Brookville · filed 2021-11-16(a)(5)

Supreme Court properly denied Kehagias's motion. The liability in tort of the Church and Archdiocese, on the one hand, and whether their insurance carriers properly disclaimed coverage of Kehagias, on the other, are separate issues. Issues of insurance coverage do not give rise to collateral estoppel or res judicata to bar this action, which is a tort action sounding in negligence.

CPLR 3211(a)(5) permits dismissal on grounds of res judicata and collateral estoppel.

Caesar v. HSBC Bank USA, NA · filed 2021-12-15(a)(5)

Contrary to the plaintiffs' contention, the Supreme Court properly granted that branch of the motion of the defendant HSBC Bank USA, NA which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it on the grounds of res judicata and collateral estoppel ( see Parker v Blauvelt Volunteer Fire Co. , 93 NY2d 343, 347; O'Brien v City of Syracuse , 54 NY2d 353, 357; Manko v Aetna Health, Inc. , 105 AD3d 814).

CPLR 3211(a)(5) does not support dismissal on res judicata or collateral estoppel grounds when the prior federal action was dismissed without prejudice.

Stern v. Pitts Mgt. Assoc., Inc. · filed 2023-03-22(a)(5)

Accordingly, contrary to Dooley's contention, the instant action is not barred by the doctrines of res judicata or collateral estoppel, and therefore was not subject to dismissal pursuant to CPLR 3211(a)(5).

CPLR 3211(a)(5) permits a party to move to dismiss a cause of action based on res judicata or collateral estoppel.

Joseph v. Bank of N.Y. Mellon · filed 2023-08-09(a)(5)

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel ( see id. ; Tracey v Deutsche Bank Natl. Trust Co. , 187 AD3d 815, 817).

Section 3211(a)(5) permits dismissal when a prior adjudication bars the claims through res judicata or collateral estoppel.

Cotton v. Kiperman · filed 2024-04-22(a)(5)

The motion by defendant.s Regina Kiperman, Esq. and RK Law P.C for an order pursuant to CPLR § 3211 dismissing the complaint of Joseph A. Cotton & The Estate of Angelina A. Ditaranto and Administrator Joseph A. Cotton is granted. The causes of action asserted in the complaint are barred by application of the principal of resjudicata and collateral estoppel.

Section 3211(a)(4) permits dismissal when another action is pending between the same parties for the same cause, and section 3211(a)(5) permits dismissal based on res judicata or collateral estoppel.

Boatman v. County of Onondaga · filed 2024-07-26(a)(4), (a)(5)

Although we may consider those alternative grounds for affirmance ( see Parochial Bus Sys. v Board of Educ. of City of N.Y. , 60 NY2d 539, 545-546 [1983]; Arista Dev., LLC v Clearmind Holdings, LLC , 207 AD3d 1127, 1129 [4th Dept 2022]; Summers v City of Rochester , 60 AD3d 1271, 1273 [4th Dept 2009]), we conclude that neither ground has merit. Contrary to defendant's contention, there was no other action pending "between the same parties for the same cause of action in a court of any state"; it is undisputed that plaintiff never served a complaint on defendant in any other action (CPLR 3211 [a] [4]; see Quinones v Z & B Trucking, Inc. , 220 AD3d 901, 902 [2d Dept 2023]; Graev v Graev , 219 AD2d 535, 535 [1st Dept 1995]). ... Defendant further contends that, because plaintiff's cause of action for IIED in the action against the probation officer was dismissed based upon his failure to establish severe emotional distress, that issue may not be relitigated and thus the NIED cause of action must be dismissed. We reject that contention. ... Here, defendant failed to establish identity of issue ( see generally Baker v Muraski , 61 AD3d 1373, 1374 [4th Dept 2009]).

Section 3211(a)(5) permits dismissal of a claim barred by res judicata or collateral estoppel.

Almonte v. Palma · filed 2024-08-05(a)(5)

Pursuant to CPLR 3211 (a) (5), in pertinent part, a party may move to dismiss on the ground that a cause of action may not be maintained because of res judicata or collateral estoppel.

CPLR 3211(a)(5) permits dismissal when res judicata or collateral estoppel bars the causes of action.

L.T. Motors Auto Sales, Inc. v. Kaplon-Belo Assoc., Inc. · filed 2024-09-25(a)(5)

Accordingly, the Supreme Court properly denied the plaintiff's motion, inter alia, for a preliminary injunction and properly granted the defendants' cross-motion, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint.

Section 3211(a)(5) does not support dismissal for claim preclusion when the earlier judgment was not on the merits, or for issue preclusion when the issues were not identical.

Emic Corp. v. Barenblatt · filed 2019-02-28(a)(5)

Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered February 7, 2018, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5), unanimously reversed, on the law, without costs, and the motion denied. Neither claim preclusion nor issue preclusion bars this state court action. Claim preclusion does not apply because the federal court judgment was not on the merits ( see Landau, P.C. v LaRossa, Mitchell & Ross , 11 NY3d 8, 13 [2008]), and issue preclusion does not apply because the issues were not identical ( see Jeffreys v Griffin , 1 NY3d 34, 39 [2003]).

Section 3211(f) extends the time to serve a responsive pleading after a motion under the section.

Oparaji v. Vessup · filed 2018-02-07(f)

Although the Supreme Court erred in determining that the plaintiffs did not establish that the defendant failed to timely answer the amended complaint ( see CPLR 3211[f]), it nevertheless properly denied the plaintiffs' motion for leave to enter a default judgment against the defendant, and, in effect, granted the defendant's cross motion for leave to serve a late answer.

Section 3211(a)(3) permits dismissal for lack of legal capacity to sue, and section 3211(a)(8) permits dismissal for lack of personal jurisdiction.

Siri Med. Assoc., PLLC v. Paradise Ct. Mgt. Corp. · filed 2018-02-15(a)(3) and (a)(8)

Plaintiff satisfied its burden of establishing, by a preponderance of the evidence, that service of process was effected on Paradise and that personal jurisdiction was thereby obtained ( see CPLR 311[a][1]; Fashion Page v Zurich Ins. Co. , 50 NY2d 265, 271-273 [1980]; Elm Mgt. Corp. v Sprung , 33 AD3d 753, 754-755 [2d Dept 2006]; see also CPLR 3211[a][8]). ... Nor did Paradise demonstrate that plaintiff lacks capacity to bring this suit. Plaintiff, as the corporate tenant claiming to have sustained property damage, had the "power to appear and bring its grievance before the court" ( Security Pac. Natl. Bank v Evans , 31 AD3d 278, 279 [1st Dept 2006], appeal dismissed 8 NY3d 837 [2007]; see CPLR 3211[a][3]).

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

Delaney v. HC2, Inc. · filed 2023-11-30(a)(3)

Plaintiff's complaint, in which he alleged that defendant improperly terminated his employment in violation of Labor Law § 740, was properly dismissed because plaintiff lacks legal capacity to sue (CPLR 3211[a][3]).

On a motion under § 3211(a)(3), an allegation of assignment sufficiently pleads standing; proof of the assignment may be tested at summary judgment or trial.

Portfolio Recovery Assoc., LLC v. Klimek · filed 2025-08-21(a)(3)

While the sufficiency Plaintiff's proof of standing will ultimately be tested either at trial or on a motion for summary judgment, the focus here is on whether the Complaint sufficiently alleges standing, which it does.

A proposed estate administrator has capacity to seek leave to serve a late notice of claim before letters of administration issue, so that status does not warrant dismissal under CPLR 3211(a)(3).

Almanzar v. New York City Health & Hosps. Corp. · filed 2025-01-29(a)(3)

Respondents oppose petitioners' application and move to dismiss the petition pursuant to CPLR 3211(a)(3) on the ground that petitioners lack the legal capacity to commence and maintain this proceeding on behalf of the estate, as no letters of administration have issued (motion seq. 002). ... For the foregoing reasons, respondents' motion to dismiss the petition is denied.

Section 3211(a)(1), (7), and (8) permits dismissal based on conclusive documentary evidence, failure to state a cause of action, or lack of personal jurisdiction.

Popescu, George-Alex v. Forexware, LLC · filed 2018-02-20(a)(1), (a)(7), (a)(8)

The complaint, supplemented by plaintiff's affidavit, gave defendant notice of the actions and occurrences that plaintiff intends to prove (CPLR 3013) sufficient to state a cause of action for breach of the employment agreement. Further, the notice of termination does not "utterly refute[]" plaintiff's claim ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction, and a plaintiff opposing the motion must make a prima facie showing that the defendant is subject to personal jurisdiction.

Abad v. Lorenzo · filed 2018-07-25(a)(8)

We agree with the Supreme Court's determination to grant the Amikle defendants' motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and to deny that branch of the plaintiff's cross motion which was to dismiss the Amikle defendants' affirmative defense of lack of personal jurisdiction.

Section 3211 permits dismissal based on documentary evidence or failure to state a cause of action, while disputed factual issues are not properly resolved on the motion.

Sehgal v. DiRaimondo · filed 2018-10-04(a)(1), (a)(7)

Neither the allegations in the complaint (CPLR 3211[a][7]), nor the documentary evidence submitted by defendants in support of the motion (CPLR 3211[a][1]), support the motion court's conclusion that subsequent counsel, who was not retained until after plaintiff had already been detained, caused plaintiff's harm.

CPLR 3211(a)(7) requires courts to accept pleaded facts as true and give plaintiffs every favorable inference, while CPLR 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense.

Grant v. DiFeo · filed 2018-10-17(a)(1) and (7)

Turning to the merits of these appeals, in reviewing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88; Kupersmith v Winged Foot Golf Club, Inc ., 38 AD3d 847, 848). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference ( see Kupersmith v Winged Foot Golf Club, Inc ., 38 AD3d at 848). On a motion to dismiss pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes the plaintiffs' factual allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d at 87-88; Kupersmith v Winged Foot Golf Club, Inc ., 38 AD3d at 848).

CPLR 3211 permits dismissal when documentary evidence conclusively establishes a defense or when the complaint fails to state a legally cognizable cause of action.

County of Westchester v. Unity Mech. Corp. · filed 2018-10-17(a)(1) and (a)(7)

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that a defense is founded on documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Attias v Costiera , 120 AD3d 1281). Affidavits, deposition testimony, and letters are not considered documentary evidence within the intendment of CPLR 3211(a)(1) ( see Cives Corp. v George A. Fuller Co., Inc. , 97 AD3d 713; Granada Condominium III Assn. v Palomino , 78 AD3d 996). ... Accordingly, we agree with the Supreme Court's denial of that branch of Unity's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it. ... In assessing a motion under 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). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275). ... Accordingly, we also agree with the Supreme Court's determination to deny that branch of Unity's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

CPLR 3211(a)(7) requires accepting complaint allegations as true and deciding whether they fit a cognizable legal theory; CPLR 3211(a)(1) permits dismissal based on documentary evidence only when it conclusively establishes a defense.

Members of the Dekalb Ave. Condominium Assn. v. Klein · filed 2019-05-22(a)(1), (a)(7)

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, 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'" ( Sokol v Leader , 74 AD3d 1180, 1181, quoting Nonnon v City of New York , 9 NY3d 825, 827; see Leon v Martinez , 84 NY2d 83, 87-88). A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that the action is barred by documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. [*2]of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d at 88). "In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v Palomino , 78 AD3d 996, 996-997; see Fontanetta v John Doe 1 , 73 AD3d 78, 86).

Section 3211 requires pleadings on a motion to dismiss to receive a liberal construction and permits dismissal based on documentary evidence only when that evidence establishes a defense.

Christopher J. Cassar, P.C. v. Spradley · filed 2019-05-02(a)(1)

"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]). The documentary evidence—the retainer agreement—did not establish a defense against so much of the complaint as had been asserted against defendant ( see CPLR 3211 [a] [1]).

Section 3211(a)(8) permits dismissal for lack of personal jurisdiction and does not require a hearing when the defendant fails to rebut the process server's affidavit with specific facts.

U.S. Bank N.A. v. Jerome · filed 2019-06-26(a)(8)

Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" ( BAC Home Loans Servicing, LP v Carrasco , 160 AD3d 688, 689 [internal quotation marks omitted]).

Section 3211(a)(8) permits a defendant to seek dismissal for lack of personal jurisdiction.

Wilmington Sav. Fund Socy., FSB v. James · filed 2019-07-24(a)(8)

Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time for service upon James and denied James's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence conclusively refutes the allegations, while CPLR 3211(a)(7) permits dismissal when the allegations do not present a justiciable controversy.

Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v. M&F, LLC · filed 2019-06-28(a)(1) and (a)(7)

Inasmuch as those instruments provided that the Town Easements were to be used as a "pedestrian pathway" for "public use" and required the Town to restore the easement property to "a park like condition" after construction of the pedestrian pathway, respondents' own documentary evidence creates issues of fact whether there was an express or implied dedication of the Town Easements subject to the public trust doctrine. Thus, respondents failed to meet their burden of submitting documentary evidence that conclusively refuted petitioner's allegations ( see Bakos v New York Cent. Mut. Fire Ins. Co. , 83 AD3d 1485, 1486 [4th Dept 2011]; see also Lots 4 Less Stores, Inc. v Integrated Props., Inc. , 152 AD3d 1181, 1182-1183 [4th Dept 2017]). In addition, deeming the material allegations of the petition-complaint to be true, we conclude that "the allegations in the second cause of action presented a justiciable controversy sufficient to invoke the court's power to render a declaratory judgment," and thus respondents were not entitled to dismissal of that cause of action pursuant to CPLR 3211 (a) (7) ( Plaza Dr. Group of CNY, LLC v Town of Sennett , 115 AD3d 1165, 1165 [4th Dept 2014]; see County of Monroe v Clough Harbour & Assoc ., LLP , 154 AD3d 1281, 1282 [4th Dept 2017]).

Under CPLR 3211(a)(1) and (7), a claim survives dismissal when favorable inferences support a valid claim and documentary evidence does not utterly refute its allegations.

Henick-Lane, Inc. v. 616 First Ave. LLC · filed 2023-03-07(a)(1), (a)(7)

According plaintiff every favorable inference, a valid claim is stated, and the documentary evidence does not utterly refute plaintiff's allegations (CPLR 3211[a][1], [7]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Sections 3211(a)(7) and (8) permit a court to dismiss claims for insufficient pleading and lack of personal jurisdiction.

Dragons 516 Ltd. v. Knights Genesis Inv. Ltd. · filed 2024-04-23(a)(7), (8)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about October 6, 2023, which denied the motion of defendants Shanghai Municipal Investment (Group) Corporation, a/k/a Shanghai Chengtou Group Corporation (SMI) and SMI Assets Management (Group) Co., Ltd. (SMI Assets; together with SMI, the Parent Companies) to dismiss the claims against them pursuant to CPLR 3211(a)(7) and (8), unanimously reversed, on the law, without costs, and the motion granted. ... The complaint does not sufficiently allege that the Parent Companies are the alter egos of defendant SMI USA Group LLC (SMI-USA), such that New York has jurisdiction over them.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the complaint's factual allegations and establishes a defense as a matter of law, while subsection (d) permits disclosure when essential facts may exist but cannot yet be stated.

Manfredonia v. Babe Ruth League, Inc. · filed 2024-05-01(a)(1), (d)

Under CPLR 3211(a)(1), a dismissal is warranted only if "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d at 88). Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations ( see Kolchins v Evolution Mkts., Inc. , 31 NY3d at 106). ... CPLR 3211(d) provides that, where it appears "that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion . . . or may order a continuance to permit . . . disclosure to be had and may make such other order as may be just."

Section 3211(a)(8) permits a defendant to seek dismissal for lack of personal jurisdiction, but a prior motion marked off the calendar must be restored before pursuing the same relief.

B&H Flooring, LLC v. Folger · filed 2024-06-20(a)(8)

However, the Supreme Court improperly granted the defendant's cross-motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. The defendant never moved to restore to the court's calendar his prior pre-answer motion for the same relief, which had been marked off the calendar for the defendant's failure to appear on the return date of the motion, made more than one year before he filed the cross-motion ( see generally Millard v Wyche , 164 AD3d 778; Vid v Kaufman , 39 AD3d 740).

Section 3211(a)(8) permits a pre-answer motion to dismiss when the court lacks personal jurisdiction over the defendant.

Miranda v. De La Cruz · filed 2024-07-11(a)(8)

CPLR 321 l(a) (8) provides for a pre-answer motion to dismiss one or more causes of action when "the court has not jurisdiction of the person of the defendant.'' (CPLR 3211).

A motion under CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction may be denied as premature when factual questions remain about the defendant's New York transactions and their relationship to the claim.

Manning v. Budget Rent A Car · filed 2025-08-13(a)(8)

However, upon the record before this Court, there are questions of fact as to whether there is an "articulable nexus" or "substantial relationship" between the plaintiffs' claim and Budget's transactions within New York. Accordingly, the Supreme Court properly denied that branch of Budget's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, in effect, as premature ( see Qudsi v Larios , 173 AD3d at 923).

Failure to meet the CPLR 3211(a)(7) standard necessarily fails the higher CPLR 3211(g) standard requiring a substantial basis in law.

Phipps v. Kuonen · filed 2025-10-01(a)(7), (g)

The plaintiff's failure to meet the CPLR 3211(a)(7) standard necessarily establishes her failure to meet the higher CPLR 3211(g) standard, required by the anti-SLAPP law because she failed to demonstrate that the causes of action to recover damages for defamation and private nuisance had a "substantial basis in law" ( see Reeves v Associated Newspapers, Ltd. , 232 AD3d 10; Southampton Day Camp Realty, LLC v Gorman , 118 AD3d at 978).

Section 3211(g) requires dismissal of a claim involving public petition and participation unless the opposing party shows the claim has a substantial basis in law.

Edwards v. Martin · filed 2018-02-22(g)

A motion to dismiss must be granted where a party demonstrates that the action involves public petition and participation, as defined in Civil Rights Law § 76-a, unless the party opposing the motion demonstrates that the cause of action has a substantial basis in law ( see CPLR 3211 [g]).

CPLR 3211(h) requires a plaintiff opposing dismissal of a covered engineering claim to present allegations and evidence raising triable issues of professional negligence and proximate cause, without proving the claim by a preponderance of the evidence.

Golby v. N & P Engrs. & Land Surveyor, PLLC · filed 2020-07-15(h)

While under this standard a plaintiff need not demonstrate that the claim is supported by a preponderance of the evidence, the plaintiff must adduce allegations and evidence that demonstrate the existence of triable issues of fact regarding the professional's negligence and proximate cause ( see Castle Vil. Owners Corp. v Greater N.Y. Mut. Ins. Co. , 58 AD3d at 183). Here, in opposition to that branch of the defendants' motion which was pursuant to CPLR 3211(h), the plaintiffs met the heightened standard imposed by CPLR 3211(h).

On a motion to dismiss under CPLR 3211 (a) (7), courts construe the pleading liberally, accept its alleged facts as true, give plaintiffs every favorable inference, and ask whether those facts fit a cognizable legal theory.

Blackmon v. City of Syracuse · filed 2020-07-24(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 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" ( id. at 87-88).

Under the version applied here, CPLR 3211(g) requires the plaintiff to show a substantial basis in law for its claims once the defendant establishes that the action involves public petition and participation.

Mable Assets, LLC v. Rachmanov · filed 2021-03-24(g)

On the defendant's motion pursuant to CPLR 3211(a)(7) and (g), once the defendant established that this action is an action involving public petition and participation, the plaintiff was obligated to demonstrate that the causes of action alleged have a "substantial basis in law" (CPLR 3211[g]).

When the anti-SLAPP law applies, CPLR 3211(g)(1) requires a plaintiff to establish a substantial basis in law for the claims or a substantial argument for changing existing law to avoid dismissal.

Trump v. Trump · filed 2023-05-03(g)(1)

Accordingly, because, in this court's assessment, the anti-SLAPP law applies to the claims at hand, plaintiff can avoid dismissal of those claims only if he can establish a "substantial basis in law" for his claims or "a substantial argument for an extension, modification or reversal of existing law" (CPLR 3211[g][1]).

Section 3211(g)(1) requires dismissal of a qualifying anti-SLAPP claim unless the responding party shows a substantial basis in law or a substantial argument for changing existing law; the 2020 amendments did not change that standard.

VIP Pet Grooming Studio, Inc. v. Sproule · filed 2024-01-17(g)(1)

The amendments made certain additions to CPLR 3211(g) but did not change the standard to be applied on a motion to dismiss in cases involving public petition and participation ( see id. § 3211[g][1], [2], [3], [4]), that dismissal motions in such actions "shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law" ( id. § 3211[g][1]).

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

Birkla v. Cincinnati Terrace Assoc., LLC · filed 2024-12-16

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 reasoriable view of those facts (Perez v. Y & M Transportation Corporation, 219 AD3d 1449, 196 NYS3d 145 [2d Dept., 2023]).

Section 3211(g) applies a substantial-basis dismissal standard to counterclaims covered by the anti-SLAPP law.

Sharp v. Bar Fluid LLC · filed 2025-04-24(g)

Bar Fluid's abuse of process and defamation counterclaims against plaintiff fall within the anti-SLAPP law (Civil Rights Law § 76-a[1][1]), triggering the "substantial basis" standard for dismissal under CPLR 3211(g) ( see Black v Ganieva , __ AD3d __, 2025 NY Slip Op 01284, at *2 [1st Dept 2025]; Reeves v Associated Newspapers, Ltd. , 232 AD3d 10, 20-22 [1st Dept 2024]).

On an anti-SLAPP motion to dismiss, a substantial basis in law requires relevant proof that a reasonable mind could accept as adequate to support a conclusion; it does not require clear and convincing evidence.

Vitagliano v. Weiner · filed 2025-04-25(g)(1)

Although we have not previously been called upon to determine what constitutes a "substantial basis in law" for the purpose of avoiding dismissal under the burden-shifting framework of CPLR 3211 (g), we agree with the First Department that " 'substantial basis' under the anti-SLAPP law means 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' " ( Reeves v Associated Newspapers, Ltd. , 232 AD3d 10, 12 [1st Dept 2024]; see also Zeitlin v Cohan , 220 AD3d 631, 632 [1st Dept 2023], lv denied 42 NY3d 905 [2024]; Smartmatic USA Corp. v Fox Corp. , 213 AD3d 512, 512 [1st Dept 2023]). Our conclusion is supported by the plain language of CPLR 3211 (g), which uses a distinctly different standard than the "clear and convincing evidence" standard found in Civil Rights Law § 76-a (2), and, as the First Department noted in Reeves , by the legislative history.

On a CPLR 3211(a) motion, the court accepts the petition’s factual allegations as true, draws favorable inferences for the petitioner, and asks whether the pleading states a cause of action.

Williamsburg Hous. Preserv. LP v. Thompson · filed 2025-09-26(a)

On a motion to dismiss pursuant to CPLR 3211 (a), a court must determine whether accepting as true the factual allegations in the petition and affording the petitioner the benefits of any favorable inferences, the petitioner can succeed upon any reasonable views of the facts and whether the pleadings have a cause of action (See Rochdale Village Inc., v Zimmerman, 2 AD3d 827 [AD 2 nd Dept 2003]).

On a motion 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.

Hempstead Classroom Teachers Assn. v. Board of Educ. of the Hempstead Union Free Sch. Dist. · filed 2025-10-22(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 favorable inference" ( Dee v Rakower , 112 AD3d 204, 208; see Leon v Martinez , 84 NY2d 83, 87-88; 1470 39th St., LLC v Goldberg , 226 AD3d 853, 854).

Section 3211(g) allows a claim subject to an anti-SLAPP dismissal motion to survive when it has a substantial basis in law.

Mancilla & Fantone, LLP v. Liu · filed 2025-10-23(g)

Plaintiffs have demonstrated that the sole remaining substantive claim, for defamation per se, has a substantial basis in law sufficient to survive dismissal under New York's anti-SLAPP law ( see CPLR 3211[g]; Black v Ganieva , 236 AD3d 427, 428 [1st Dept 2025] [substantial basis standard]; see also Moonbeam Gateway Mar., LLC v Tai Chan , 239 AD3d 965, 966-967 [2d Dept 2025]; Civil Rights Law 76-a[2]).

Once the movant shows that a claim is a SLAPP claim, section 3211(g) requires dismissal on a 3211(a)(7) motion unless the nonmoving party shows that the claim has a substantial basis in law.

S.N. v. Integral Yoga Inst., Inc. · filed 2026-01-15(g)

On the contrary, CPLR 3211(g) makes clear that on a 3211(a)(7) motion to dismiss, once the movant demonstrates that the claim (or, here, the counterclaim) is a SLAPP claim, the motion "shall be granted" unless the nonmoving party shows "that the cause of action has a substantial basis in law."

On a CPLR 3211 motion to dismiss, the question is whether the complaint states a cognizable cause of action.

People v. Trump · filed 2025-08-21

That Supreme Court's prior decisions had been affirmed on appeal did not render defendants' repetition of the arguments insupportable: our pronouncements with respect to the Attorney General's authority to pursue the action and the availability of disgorgement as a remedy were statements of general law appropriate for a CPLR 3211 dismissal analysis where the sole question was the complaint's statement of a cognizable cause of action ( see People v Trump , 217 AD3d at 610).

Section 3211(a)(5) allows a court to dismiss a claim when a statute of limitations bars it.

U.S. Bank, N.A. v. Kess · filed 2018-03-07(a)(5)

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Philip Kess which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred is granted.

Section 3211(a)(5) permits dismissal of a complaint as time-barred.

Mourato v. Suffolk County Water Auth. · filed 2018-03-21(a)(5)

Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

Section 3211(a)(5) permits a court to dismiss a claim as time-barred.

Livsey v. Nyack Hosp. · filed 2018-12-05(a)(5)

ORDERED that the order is reversed, on the law, with costs, that branch of the defendant Nyack Hospital's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred is granted, and that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it is denied as academic.

Section 3211(a)(5) permits dismissal of a time-barred action when the defendant shows prima facie that the limitations period has expired.

Piliaskas v. Mountain Val. Indem. Co. · filed 2019-07-17(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) as time-barred, the defendant must show, prima facie, that the time in which to commence the action has expired ( see Hohwald v Farm Family Cas. Ins. Co. , 155 AD3d 1009, 1009).

A party seeking dismissal of a counterclaim as time-barred under CPLR 3211(a)(5) must establish, prima facie, that the claim accrued outside the limitations period.

Soufer v. Baroukhian · filed 2020-04-29(a)(5)

The plaintiff failed to establish, prima facie, that Baroukhian's counterclaims against the plaintiff for specific performance and to recover damages for breach of contract accrued more than six years prior to when the counterclaims were asserted ( see Rodeo Family Enters., LLC v Matte , 99 AD3d 781, 783-784; Swift v New York Med. Coll. , 25 AD3d 686, 687).

Section 3211(a)(5) permits dismissal as time-barred when the defendant makes a prima facie showing that the limitations period expired and the plaintiff fails to raise a factual issue about timeliness.

Deutsche Bank Natl. Trust Co. Ams. v. Bernal · filed 2020-09-23(a)(5)

Since the instant action was commenced on December 2, 2015, more than six years after the prior action was commenced, the defendant sustained his initial burden of demonstrating, prima facie, that the instant action was untimely ( see Bank of N.Y. Mellon v Craig , 169 AD3d 627, 629). In opposition, the plaintiff failed to raise an issue of fact as to whether the instant action was timely ( see Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669-670). ... Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a question of fact about timeliness or an exception.

Bayview Loan Servicing, LLC v. Paniagua · filed 2022-07-27(a)(5)

"'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired'" ( U.S. Bank N.A. v Vitolo , 182 AD3d 627, 627-628, quoting Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197). "'If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period'" ( U.S. Bank N.A. v Vitolo , 182 AD3d at 628, quoting Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

Section 3211(a)(5) permits dismissal of a claim as time-barred.

Deutsche Bank Natl. Trust Co. v. Heitner · filed 2024-04-24(a)(5)

Accordingly, the instant action was not timely commenced under CPLR 205-a, and therefore, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

Section 3211(a)(5) permits dismissal of a claim that is time-barred.

U.S. Bank Trust, N.A. v. Giangrande · filed 2024-07-31(a)(5)

Accordingly, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred should have been granted.

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

Turner v. Pride & Servs. El. Co., Inc. · filed 2024-12-23(a)(5)

A party moving to dismiss an action as time-barred under CPLR 3211(a)(5) bears the burden of demonstrating that the time in which to sue has expired (MTGLQ Invs., LP v Wozencraft, 172 AD3d 644, 644-645 [1st Dept 2019], lv dismissed 34 NY3d 1010 [2019]; Benn v Benn, 82 ... AD3d 548, 548 [1st Dept 2011]).

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

Salati v. Northwell Health · filed 2025-03-19(a)(5)

Pursuant to CPLR 3211(a)(5), "'a moving defendant must establish, prima facie, that the time within which to commence the action has expired'" ( Statharos v Statharos , 219 AD3d 651, 652, quoting Franklin v Hafftka , 140 AD3d 922, 924). Once this threshold showing is met, the burden then shifts to the plaintiff to "'raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period'" ( id. , quoting Franklin v Hafftka , 140 AD3d at 924).

A party moving to dismiss an action as time-barred under CPLR 3211 (a)(5) bears the initial burden of showing that the time to sue has expired.

Gammon Collection Inc. v. Athena Art Fin. Corp. · filed 2025-06-02(a)(5)

A party moving under CPLR 3211 (a)(5) to dismiss an action as time-barred “bears the initial burden of establishing, prima facie, that the time in which to sue has expired.”

Under CPLR 3211(a)(5), a defendant's prima facie showing that a claim is time-barred supports dismissal if the plaintiff raises no question of fact.

UMB Bank, N.A. v. Janvier · filed 2025-10-01(a)(5)

Here, the defendant established, prima facie, that this action is time-barred, and in opposition, the plaintiff failed to raise a question of fact. ... Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a)(5) dismissing the complaint insofar as asserted against him as time-barred.

On a motion to dismiss for lack of standing under CPLR 3211(a)(3), the defendant must first show that the plaintiff lacks standing; the plaintiff need only raise a question of fact to defeat the motion.

Agudas Chasidei Chabad of United States v. Simpson · filed 2025-06-18(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" ( Sikh Forum, Inc. v Saluja , 227 AD3d 1024, 1025 [internal quotation marks omitted]).

On a motion to dismiss for lack of standing, the defendant must establish the plaintiff's lack of standing as a matter of law.

Mariners Atl. Portfolio, LLC v. Hector · filed 2018-03-07(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 ( see Wells Fargo Bank, N.A. v Archibald , 150 AD3d 935, 936; U.S. Bank, N.A. v Noble , 144 AD3d at 787; U.S. Bank N.A. v Guy , 125 AD3d 845, 847; HSBC Mtge. Corp. [USA] v MacPherson , 89 AD3d 1061, 1062).

Section 3211(a)(3) places the initial burden on the moving defendant to establish the plaintiff's lack of standing prima facie.

Bank of N.Y. Mellon Trust Co., NA v. Obadia · filed 2019-10-23(a)(3)

Where, as here, a defendant moves to dismiss the complaint pursuant to CPLR 3211(a)(3) for 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" ( Deutsche Bank Trust Co. Ams. v Vitellas , 131 AD3d 52, 59-60; see Phoenix Grantor Trust v Exclusive Hospitality, LLC , 172 AD3d 923, 925-926).

On a pre-answer motion to dismiss a mortgage foreclosure complaint for lack of standing, the moving defendant must make a prima facie showing that the plaintiff lacks standing; if the defendant fails, the motion is denied regardless of the plaintiff's opposing papers.

Deutsche Bank Natl. Trust Co. v. Benson · filed 2020-01-15(a)(3)

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him regardless of the sufficiency of the plaintiff's opposing papers ( see Deutsche Bank Natl. Trust Co. v Murray , 176 AD3d 1172, 1174; see generally Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853).

A defendant moving to dismiss for lack of standing must establish the plaintiff’s lack of standing; a deficiency in the foreclosure certificate of merit alone does not satisfy that burden.

Wilmington Sav. Fund Socy., FSB v. Matamoro · filed 2021-10-20(a)(3)

But a deficiency in a certificate of merit will not, in and of itself, provide a basis for the dismissal of a complaint if the defendant, as the moving party, fails to affirmatively address in its motion papers all relevant legal issues required for a CPLR 3211 dismissal, including any that go beyond the contents of the certificate of merit itself.

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

Citimortgage, Inc. v. Rogers · filed 2022-03-30(a)

Here, in support of his motion to dismiss, the defendant failed to submit any evidence, and thus, failed to meet his burden to establish the plaintiff's lack of standing as a matter of law ( see Deutsche Bank Trust Co. Ams. v Vitellas , 131 AD3d 52, 60). Thus, the Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him based on lack of standing.

On a defendant’s motion to dismiss for lack of standing, CPLR 3211(a) places the burden on the defendant to establish the plaintiff’s lack of standing as a matter of law.

U.S. Bank N.A. v. Smith · filed 2023-11-29(a)

"On a defendant's motion to dismiss a 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" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]; Wells Fargo Bank, N.A. v LJ Equities II, LLC , 175 AD3d 1592, 1593).

On a motion to dismiss for lack of standing under § 3211(a)(3), the defendant must initially establish that the plaintiff lacks standing as a matter of law.

Diner v. Diner · filed 2024-10-08(a)(3)

When considering a motion to dismiss pursuant to CPLR §3211(a)(3), based upon an alleged lack of standing, it is the burden of the moving defendants to establish, prima facie, that the plaintiffs lack standing as a matter of law.

CPLR 3211(a)(7) requires a court reviewing a complaint to accept its alleged facts as true, give the plaintiff every favorable inference, and decide only whether those facts fit a cognizable legal theory.

Kliger-Weiss Infosystems, Inc. v. Ruskin Moscou Faltischek, P.C. · filed 2018-03-07(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court should accept the alleged facts in the complaint as true and afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211(a)(7) requires liberal construction of the complaint, presumes the alleged facts are true, and asks whether they fit any cognizable legal theory.

Mirro v. City of New York · filed 2018-03-28(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 ( see CPLR 3026; Thompson Bros. Pile Corp. v Rosenblum, 121 AD3d 672, 673).

CPLR 3211(a)(7) requires liberal construction of the complaint, presumption that alleged facts are true, the benefit of every favorable inference for the plaintiff, and dismissal only when the alleged facts do not fit any cognizable legal theory.

Santaiti v. Town of Ramapo · filed 2018-06-20(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 ( see CPLR 3026; Leon v Martinez , 84 NY2d 83, 87-88; Kassapian v City of New York , 155 AD3d 851, 853).

A complaint survives a CPLR 3211(a)(7) motion when its alleged facts, liberally construed and accepted as true, fit within any cognizable legal theory.

George v. Windham · filed 2019-02-20(a)(7)

When assessing the adequacy of a complaint in light of a motion to dismiss pursuant [*2]to CPLR 3211(a)(7), the question is whether the pleading states a cause of action, not whether the plaintiff has a cause of action ( see Romanello v Intesa Sanpaolo , S.p.A. , 22 NY3d 881, 887; Guggenheimer v Ginzburg , 43 NY2d 268, 275; Sokol v Leader , 74 AD3d 1180, 1180-1181).

CPLR 3211(a)(7) requires liberal construction and acceptance of alleged facts as true, while CPLR 3211(a)(1) requires documentary evidence that resolves factual issues as a matter of law and conclusively disposes of the claim.

255 Butler Assoc., LLC v. 255 Butler, LLC · filed 2019-06-05(a)(1) and (a)(7)

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the [*2]complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference" ( Elow v Svenningsen , 58 AD3d 674, 674). The "sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275). A party seeking dismissal pursuant to CPLR 3211(a)(1) "on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim" ( Elow v Svenningsen , 58 AD3d at 675; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88).

On a motion to dismiss for failure to state a cause of action, the court accepts pleaded facts as true and gives the plaintiff every favorable inference, but does not give that treatment to bare legal conclusions.

Doe v. Hauppauge Union Free Sch. Dist. · filed 2023-02-15(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, 87-88; 106 N. Broadway, LLC v Lawrence , 189 AD3d 733, 736). However, "allegations consisting of bare legal conclusions . . . are not entitled to any such consideration" ( Simkin v Blank , 19 NY3d 46, 52 [internal quotation marks omitted]; see Fuller v Family Servs. of Westchester, Inc. , 209 AD3d 983).

On a motion to dismiss, the defendant bears the initial burden under CPLR 3211(a)(5), while dismissal under CPLR 3211(a)(1) requires documentary evidence that utterly refutes the complaint and conclusively establishes a defense.

U.S. Bank N.A. v. Marrero · filed 2023-11-01(a)(5), (a)(1)

"In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" ( Schrull v Weis , 166 AD3d 829, 831 [internal quotation marks omitted]); see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP , 149 AD3d 788, 789).

Section 3211 requires documentary evidence to utterly refute factual allegations for dismissal under subsection (a)(1) and permits dismissal under subsection (a)(7) only when the complaint lacks facts supporting an element or an enforceable right of recovery.

Audthan v. Nick & Duke · filed 2024-04-25(a)(1), (a)(7)

On a motion to dismiss a complaint under CPLR 3211, “we must liberally construe the pleading and ‘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’ ” (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Company, Inc., 37 NY3d 169, 175 [2021], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Roni LLC v Arfa, 18 NY3d 846, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005] [“On a CPLR 3211 motion to dismiss . . . the question of ‘(w)hether a plaintiff can ultimately establish its allegations is not part of the calculus’ ”]). N&D moved to dismiss Audthan’s anticipatory repudiation claim under CPLR 3211 (a) (1) and (7) which requires N&D to prove a defense “founded upon documentary evidence” and demonstrate Audthan’s complaint failed to state a claim, respectively. To succeed under CPLR 3211 (a) (1), N&D’s “documentary evidence” must “utterly refute” Audthan’s “factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Dismissal under CPLR 3211 (a) (7) is warranted only if Audthan “fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017]). Given the current procedural posture, dismissal of Audthan’s anticipatory repudiation claim was unwarranted.

CPLR 3211 requires courts reviewing a motion to dismiss to accept pleaded facts as true, give the nonmoving party every favorable inference, and decide whether the allegations fit a cognizable legal theory.

Van Amburgh v. Boadle · filed 2024-08-08(a)(1) and (a)(7)

Initially, this appeal comes to us by way of a motion to dismiss pursuant to CPLR 3211 and, thus, "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" ( Singe v Bates Troy, Inc. , 206 AD3d 1528, 1530 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Lewis v Dagostino , 199 AD3d 1221, 1222 [3d Dept 2021]).

Section 3211(e) permits a defendant to raise usury as a ground for dismissal; otherwise, the defense is waived.

Power Up Lending Group, Ltd. v. Cardinal Resources, Inc. · filed 2018-04-04(e)

Usury is an affirmative defense which a defendant must either assert in an answer or as a ground to move to dismiss the complaint pursuant to CPLR 3211. Otherwise, the defense is waived ( see CPLR 3211[e]; 3018[b]; Whittemore v Yeo, 112 AD3d 475, 476; Hochman v LaRea, 14 AD3d 653, 654).

Section 3211 permits pre-answer dismissal on specified grounds, including documentary evidence, lack of subject matter jurisdiction, another action pending, and affirmative defenses, when those grounds are established.

Stefansky v. Kaufman · filed 2024-11-05(a)(1), (a)(2), (a)(4), and (a)(5)

That branch of Defendants' motion to dismiss the complaint in accordance with CPLR 3211 (a) (1) (defense founded upon documentary evidence), (2) (lack of subject matter jurisdiction), (4) (another action pending), and (5) (arbitration and award, payment, release, and other affirmative defenses) must also be denied.

CPLR 3211(a) permits dismissal motions based on grounds including lack of subject matter jurisdiction, failure to state a cause of action, documentary evidence, and lack of personal jurisdiction, subject to specified standards.

Escobar v. Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios · filed 2024-11-13(a)(1), (a)(2), (a)(7), and (a)(8)

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction. ... 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 Belcastro v Roman Catholic Diocese of Brooklyn, N.Y. , 213 AD3d 800, 801). ... Pursuant to CPLR 3211(a)(1), "a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326, 1327-1328; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... However, in opposing a motion pursuant to CPLR 3211(a)(8) to dismiss a complaint on the ground of lack of personal jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists ( see WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc. , 216 AD3d 1, 6; Chiesa v McGregor , 209 AD3d 963, 967).

CPLR 3211 permits dismissal based on conclusive documentary evidence, collateral estoppel, or failure to state a cause of action, applying liberal construction to the pleading and accepting its alleged facts as true.

Siemsen v. Mevorach · filed 2018-04-25(a)(1), (a)(5), and (a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court "must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87; Meyer v North Shore-Long Is. Jewish Health Sys., Inc., 137 AD3d 880, 880-881).