N.Y. C.P.L.R. § 3211

Section 3211(a)(1) requires documentary evidence to resolve factual issues as a matter of law, while section 3211(a)(7) tests whether pleaded facts state a cause of action and permits dismissal of claims that do not.

Razdolskaya v. Lyubarsky · filed 2018-04-25(a)(1), (a)(7)

We agree with the Supreme Court's determination to deny those branches of the Lyubarskys' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss so much of the fraud cause of action as was premised upon the alleged concealment of defects in the common areas of the building. ... Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference ( see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88), the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. ... Further, in support of that branch of their motion which sought dismissal pursuant to CPLR 3211(a)(1), the Lyubarskys failed to sustain their burden of submitting documentary evidence to resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's fraud cause of action as it related to the common areas of the building ( see Leon v Martinez, 84 NY2d at 87; Camisa v Papaleo, 93 AD3d at 625). ... The Supreme Court, however, should have granted those branches of the Lyubarskys' motion which were pursuant to CPLR 3211(a)(7) to dismiss Ikhilov's cross claims for common-law and contractual indemnification.

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense, while section 3211(a)(7) requires accepting alleged facts as true and favorable inferences to determine whether a cognizable legal theory exists.

Esposito v. Weiner · filed 2018-04-25(a)(1) and (a)(7)

To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88). ... Applying these standards, the Supreme Court properly denied those branches of the Crabtree defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them.

CPLR 3211(a)(5) permits dismissal when a cause of action is barred by the statute of limitations and requires the defendant to establish prima facie that the time to sue has expired.

Collins v. Davirro · filed 2018-04-27(a)(5)

In reviewing this pre-answer motion to dismiss pursuant to CPLR 3211, we must "accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]). Furthermore, "[o]n a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Island ADC, Inc. v Baldassano Architectural Group, P.C. , 49 AD3d 815, 816 [2d Dept 2008]; see Loscalzo v 507-509 President St. Tenants Assn. Hous. Dev. Fund Corp. , 153 AD3d 614, 615 [2d Dept 2017], lv denied 30 NY3d 905 [2017]).

Section 3211 allows a defendant to seek dismissal of a complaint on specified grounds, including collateral estoppel and failure to state a cause of action.

Lamberti v. Plaza Equities, LLC · filed 2018-05-09(a)(5), (a)(7)

Thus, Private Capital was entitled to dismissal based on collateral estoppel ( see SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank , 128 AD3d at 676; Suffern Realty Assoc. Corp. v Garewal , 41 AD3d 581). Similarly, Lamberti's causes of action against Plaza Equities and PE-NC are barred by collateral estoppel ( see Breslin Realty Dev. Corp. v Shaw , 72 AD3d 258). ... We agree with the Supreme Court that the Kiley defendants were entitled to dismissal of the amended complaint insofar as asserted against them pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

Section 3211(a)(1) requires documentary evidence to utterly refute the complaint and conclusively establish a defense, while section 3211(a)(7) asks whether the pleaded facts fit any cognizable legal theory.

Garcia v. Polsky, Shouldice & Rosen, P.C. · filed 2018-05-09(a)(1) and (a)(7)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88). ... "On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any [*2]cognizable legal theory" ( Shah v Exxis, Inc., 138 AD3d 970, 971; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).

A motion to dismiss under CPLR 3211(a)(1) may be defeated when documentary evidence does not conclusively establish a defense, and under CPLR 3211(a)(7) a complaint is construed liberally with factual allegations presumed true and every favorable inference given.

Jg v. Goldfinger · filed 2018-05-24(a)(1), (a)(7)

While the Covecastles defendants came forward with documentary evidence showing that they did not own the beach where the infant plaintiff was found, they failed to conclusively establish either that no part of the attack occurred on their property or that they had no responsibility for that area, which they touted as "our" beach. ... Similarly, when construing the complaint liberally, presuming its factual allegations to be true, and giving the allegations every favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), plaintiffs adequately state a claim for negligent hiring ( see Haddock v City of New York , 140 AD2d 91, 94 [1st Dept 1988], affd 75 NY2d 478 [1990]).

CPLR 3211 permits dismissal based on a statute of limitations, lack of legal capacity to sue, or failure to state a cause of action, with liberal construction of the pleading under subsection (a)(7).

Village of Islandia v. County of Suffolk · filed 2018-06-06(a)(3), (a)(5), and (a)(7)

A party may move for judgment dismissing one or more causes of action on the ground that the cause of action may not be maintained because of the statute of limitations ( see CPLR 3211[a][5]). ... A party may move for judgment dismissing one or more causes of action on the ground that the party asserting the cause of action lacks legal capacity to sue ( see CPLR 3211[a][3]). ... A party may move for judgment dismissing one or more causes of action on the ground that the pleading fails to state a cause of action ( see CPLR 3211[a][7]).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint and conclusively establishes a legal defense, while section 3211(a)(7) requires liberal construction and every favorable inference when testing whether a complaint states a cause of action.

Keshin v. Montauk Homes, LLC · filed 2018-06-13(a)(1), (a)(7)

A complaint may only be dismissed pursuant to CPLR 3211(a)(1) if the documentary evidence submitted in support of the motion utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the asserted claims as a matter of law. ... On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the complaint must be liberally construed, and the courts must provide a plaintiff with every favorable inference ( see Carlson v American Intl. Group, Inc., 30 NY3d 288, 297-298, citing Leon v Martinez, 84 NY2d 83, 87).

CPLR 3211(a) governs motions to dismiss based on pleading sufficiency, documentary evidence, and legal capacity to sue.

Froehlich v. 66 Shore Dr., LLC · filed 2018-06-13(a)(1), (a)(3), and (a)(7)

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), "the 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). ... 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). ... CPLR 3211(a)(3) provides a basis for dismissal where the party asserting the cause of action does not have legal capacity to sue.

Section 3211 permits dismissal of a complaint for untimeliness or failure to state a legally cognizable cause of action.

Teller v. Galak · filed 2018-06-20(a)(5) and (a)(7)

The Supreme Court should not have granted those branches of the defendants' separate motions which were to dismiss the malicious prosecution cause of action on the ground that it was time-barred ( see CPLR 3211[a][5]). ... Nevertheless, we affirm the portion of the order granting those branches of the defendants' separate motions which were to dismiss the malicious prosecution cause of action, since the complaint did not state a cause of action for malicious prosecution ( see CPLR 3211[a][7]). ... "A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" ( Sheroff v Dreyfus Corp ., 50 AD3d 877, 877-878; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38).

Section 3211 requires pleadings on a motion to dismiss to receive a liberal construction, with allegations assumed true and favorable inferences given to the plaintiff.

Wisdom v. Reoco, LLC · filed 2018-06-21

"On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference" ( Simkin v Blank , 19 NY3d 46, 52 [2012] [citation omitted]; accord Vestal v Pontillo , 158 AD3d 1036, 1038 [2018]).

CPLR 3211(a)(5) permits dismissal when the movant establishes that a claim cannot be maintained because the statute of limitations has expired.

Essepian v. United Group of Cos., Inc. · filed 2018-07-23(a)(5)

Dismissal is warranted under CPLR 3211 (a) (5) where the movant establishes that a claim may not be maintained due to the expiration of the statute of limitations.

Section 3211(a)(7) requires courts to accept alleged facts as true and determine whether they fit a cognizable legal theory, while section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense.

Stone v. Bloomberg L.P. · filed 2018-07-25(a)(1) and (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 Leon v Martinez , 84 NY2d 83, 87-88; Rodriguez v Daily News, L.P ., 142 AD3d at 1063). ... "A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Feldshteyn v Brighton Beach 2012, LLC , 153 AD3d 670, 671 [internal quotation marks and citation omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Greenberg v Spitzer , 155 AD3d at 44).

Section 3211(a) governs motions to dismiss, including the grounds and burdens applicable to dismissal motions.

Spitzer v. Newman · filed 2018-07-25(a)(1), (5), and (7)

On a motion to dismiss a complaint 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 ( see Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 197). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or otherwise inapplicable ( see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789; Beroza v Sallah Law Firm, P.C., 126 AD3d 742, 742).

Section 3211 sets the standards for dismissing a claim for failure to state a cause of action or based on documentary evidence.

Singh v. Zoria Hous., LLC · filed 2018-07-25(a)(1), (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 87). ... A motion to dismiss pursuant to CPLR 3211(a)(1) may be 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. of New York , 98 NY2d 314, 326; see 533 Park Ave. Realty, LLC v Park Ave. Bldg. & Roofing Supplies, LLC , 156 AD3d 744, 746).

CPLR 3211(a) requires courts to accept pleaded facts as true and favorable inferences; documentary evidence must conclusively establish a defense for dismissal under (a)(1), and under (a)(5) the defendant must first show that the limitations period expired.

Ocean Gate Homeowners Assn., Inc. v. T.W. Finnerty Prop. Mgt., Inc. · filed 2018-07-25(a), (a)(1), (a)(5)

On a motion to dismiss pursuant to CPLR 3211(a), a court must "accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88; see Kolchins v Evolution Mkts., Inc ., 31 NY3d 100, 105-106). ... A [*2]motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on 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. of N.Y. , 98 NY2d 314, 326; see Carbone v US Bank N.A. , 156 AD3d 678, 679). ... "To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( Stewart v GDC Tower at Greystone , 138 AD3d 729, 729; see Campone v Panos , 142 AD3d 1126, 1127).

CPLR 3211 permits dismissal based on documentary evidence that conclusively refutes the claim or when the pleaded facts do not state a cognizable cause of action.

Milone v. US Bank Natl. Assn. · filed 2018-08-15(a)(1) and (a)(7)

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground of documentary evidence may only be granted where the documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Hutton Group, Inc. v Cameo Owners Corp ., 160 AD3d 676; Hershco v Gordon & Gordon , 155 AD3d 1007, 1008). On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true and afford the plaintiff the benefit of every favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87; Hershco v Gordon & Gordon , 155 AD3d at 1008; Cruciata v O'Donnell & McLaughlin, Esqs ., 149 AD3d 1034, 1034-1035).

Section 3211(a)(7) requires a court to accept pleaded facts as true and determine whether they fit a cognizable legal theory, while section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense.

Pacella v. RSA Consultants, Inc. · filed 2018-08-22(a)(1), (a)(7)

On a motion to dismiss a complaint 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; Thompson Bros. Pile Corp. v Rosenblum , 121 AD3d 672). A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) 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; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo , 113 AD3d 587, 588).

Section 3211 allows dismissal based on documentary evidence that conclusively establishes a defense or when the complaint fails to state a legally cognizable claim.

Cheng v. Salguero · filed 2018-08-22(a)(1), (a)(7)

To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "An unambiguous contract provision may qualify as documentary evidence under CPLR 3211(a)(1)" ( 413 Throop, LLC v Triumph, the Church of the New Age, 153 AD3d 1306, 1307). Here, the parties' contract, which limited the plaintiff's remedies in the event that the defendants were unable to clear defects in title, established a complete defense as a matter of law to the first and third causes of action, seeking specific performance and reformation of the contract based upon mutual mistake, respectively ( see Waldman v LDK Realty, Inc., 63 AD3d 828, 830; 101123 LLC v Solis Realty LLC, 23 AD3d 107, 108).

CPLR 3211 permits a defendant to seek dismissal before answering, including when documentary evidence conclusively establishes a defense or the pleading fails to state a cause of action.

Henn v. City of New York · filed 2018-08-22(a)(1), (a)(7), and (c)

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" ( Mendelovitz v Cohen, 37 AD3d 670, 670; see Torres v City of New York, 153 AD3d 647, 648). ... "In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action" ( Torres v City of New York, 153 AD3d at 648 [internal quotation marks omitted]). ... The documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law ( see CPLR 3211[a][1]; Torres v City of New York, 153 AD3d at 649). Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action ( see CPLR 3211[a][7]; Torres v City of New York, 153 AD3d at 649). ... Finally, the Supreme Court providently exercised its discretion in denying that branch of the ballpark defendants' motion which was to convert their motion into one for summary judgment pursuant to CPLR 3211(c).

On a motion to dismiss, pleaded allegations are accepted as true when testing whether the claimant has stated a legally sufficient claim.

Matter of Real Estate Bd. of N.Y., Inc. v. City of New York · filed 2018-08-23

Accepted as true for purposes of these CPLR 3211 motions, REBNY's assertion that its member hotel owners are currently negatively affected by the moratorium is sufficient to establish standing in the plenary action and in the article 78 proceeding under ULURP ( see Society of Plastics Indus. , 77 NY2d at 774).

CPLR 3211 permits dismissal based on documentary evidence, failure to state a cause of action, or an applicable statute of limitations.

Webster v. Sherman · filed 2018-10-03(a)(1), (a)(5), and (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction and the court must give the plaintiff "the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether the facts as alleged fit within any cognizable legal theory" ... A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ... In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable [statute of] limitations period, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired.

CPLR 3211(a)(7) requires courts to accept pleaded facts as true, grant favorable inferences, and determine whether they fit a cognizable legal theory; CPLR 3211(a)(5) permits dismissal when the claim is barred by the statute of frauds.

McKesson Medical-Surgical Minn. Supply, Inc. v. Caremed Supplies, Inc. · filed 2018-09-26(a)(7), (a)(5)

"On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal [*2]theory" ( Wand, Powers & Goody, LLP v Yuliano , 144 AD3d 1017, 1018; see Siony v Siunykalimi , 119 AD3d 927, 928; Mazzei v Kyriacou , 98 AD3d 1088, 1090).

Section 3211(e) governs the timing of motions to dismiss, including the effect of an agreed extension of the time to respond.

McHale v. Metropolitan Life Ins. Co. · filed 2018-10-17(e)

Here, MetLife proffered a reasonable justification for its omission of evidence of the extension of time by demonstrating that the issue of timeliness was raised sua sponte by the Supreme Court. Under these circumstances, the court providently exercised its discretion in granting MetLife leave to renew its motion to dismiss ( see Candlewood Holdings, Inc. v Valle , 134 AD3d 872, 874; Argento v Wal-Mart Stores, Inc. , 66 AD3d 930, 933).

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

Ortiz v. Silver Invs. · filed 2018-10-24(a)(1) and (a)(7)

Deeming the allegations in the complaint as true and affording the plaintiff the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88), the complaint adequately states a cause of action to cancel the deed and set aside the conveyance.

CPLR 3211 permits dismissal based on documentary evidence that conclusively defeats the allegations and requires favorable treatment of a pleading while bare legal conclusions receive no presumption of truth.

Gillings v. New York Post · filed 2018-11-07(a)(1), (a)(7)

"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" ( Granada Condominium III Assn. v Palomino , 78 AD3d 996, 996; see Leon v Martinez , 84 NY2d 83, 87). However, on a motion to dismiss pursuant to CPLR 3211(a)(7), "bare legal conclusions are not presumed to be true" ( Khan v MMCA Lease, Ltd. , 100 AD3d 833, 833; see Goel v Ramachandran , 111 AD3d 783, 791-792). A motion to dismiss pursuant to CPLR 3211(a)(1) 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. of N.Y. , 98 NY2d 314, 326; see Allen v Echeverria , 128 AD3d 738, 739-740).

Section 3211(a)(4) permits dismissal when another action involving the same parties and subject matter is pending.

DLJ Mtge. Capital v. Mahadeo · filed 2018-11-20(a)(4)

The court should not have dismissed the complaint based on prior actions pending, pursuant to CPLR 3211(a)(4).

CPLR 3211(a) permits a court to deny dismissal of declaratory judgment causes of action and retain jurisdiction to declare the parties' rights.

Wausau Underwriters Ins. Co. v. Gamma USA, Inc. · filed 2018-11-21(a)

Since three of the plaintiff's five causes of action were for a declaratory judgment, "the proper procedure for the court is to deny the motion to dismiss the complaint (thereby retaining jurisdiction of the controversy) and then to declare the rights of the parties, whatever they may be" ( Matter of Jacobs v Cartalemi , 156 AD3d 635, 640 [internal quotation marks omitted]). Accordingly, the Supreme Court should have denied that branch of the motion of TNS and Tishman [*3]which was to dismiss the causes of action for a declaratory judgment, and rendered appropriate declarations.

CPLR 3211 requires courts evaluating a motion to dismiss to construe the pleading liberally, accept allegations within the complaint's four corners as true, and give the plaintiff every favorable inference when deciding whether the allegations fit a cognizable legal theory.

O'Hanlon v. Renwick · filed 2018-11-21

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction, the facts as alleged within the four corners of the complaint must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference to determine whether the facts as alleged fit within any cognizable legal theory ( see CPLR 3026; Leon v Martinez , 84 NY2d 83, 87-88; Guggenheimer v Ginzburg , 43 NY2d 268, 275; Rovello v Orofino Realty Co. , 40 NY2d 633, 634).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while section 3211(a)(7) governs dismissal for failure to state a cause of action.

Moxey v. Payne · filed 2018-12-05(a)(1), (a)(7)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 88). "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must [*2]accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 159 AD3d 769, 771; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Leon v Martinez , 84 NY2d at 87-88).

CPLR 3211 requires a court deciding a motion to dismiss to afford the pleading a liberal construction.

Eskenazi-McGibney v. Connetquot Cent. Sch. Dist. · filed 2018-12-12(a)(7)

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction ( see CPLR 3026).

A CPLR 3211 motion against a complaint requires the court to accept the allegations as true and draw all reasonable inferences in the pleader's favor.

Baron v. Suissa · filed 2018-12-12(a)(5)

"On a CPLR 3211 motion made against a complaint, including a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint based on the statute of frauds, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" ( AAA Viza, Inc. v Business Payment Sys., LLC , 38 AD3d 802, 803, quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [internal quotation marks omitted]).

Section 3211(a)(7) governs dismissal for failure to state a cause of action, and section 3211(a)(1) permits consideration of documentary evidence on a dismissal motion.

Shawe v. Kramer Levin Naftalis & Frankel LLP · filed 2018-12-13(a)(7), (a)(1)

Plaintiff failed to demonstrate that Supreme Court did not apply the correct standard on this motion to dismiss pursuant to CPLR 3211(a)(7). Moreover, he failed to mention that the motion was also made under CPLR 3211(a)(1). Supreme Court correctly evaluated the documentary evidence annexed to the motion.

Section 3211 permits dismissal based on documentary evidence, failure to state a cause of action, or lack of personal jurisdiction, subject to the applicable pleading and evidentiary standards.

Doller v. Prescott · filed 2018-12-20(a)(1), (a)(7), and (a)(8)

On a motion to dismiss pursuant to CPLR 3211, we give "the pleading . . . a liberal construction, [assume] the allegations contained within it are . . . true and [afford] the plaintiff . . . every favorable inference" ( Simkin v Blank , 19 NY3d 46, 52 [2012]). Relevant here, a motion pursuant to CPLR 3211 (a) (1) must be granted where the documentary evidence "conclusively refutes plaintiff's factual allegations" and establishes a defense as a matter of law ( Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 106 [2018]; see Ganje v Yusuf , 133 AD3d 954, 956 [2015]). The "sole criterion" under a motion to dismiss for failure to state a cause of action [*2]pursuant to CPLR 3211 (a) (7) is whether, "from [the pleading's] four corners[,] factual allegations are discerned which taken together manifest any cause of action cognizable at law" ( People v Coventry First LLC , 13 NY3d 108, 115 [2009] [internal quotation marks and citation omitted]; see Gizara v New York Times Co. , 80 AD3d 1026, 1030 [2011]).

Section 3211(e) requires a motion to dismiss to be made within the applicable time limit.

Gerster's Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC · filed 2018-12-27(e)

Even if, as defendants argue, the remand proceedings tolled their time to file responsive pleadings or a motion to dismiss, defendants failed to thereafter timely serve an answer ( see CPLR 3012) or to move to dismiss within that time ( see CPLR 3211 [e]).

On a motion to dismiss, pleadings are accepted as true, and documentary evidence must establish the defense to warrant dismissal.

Arici v. Poma · filed 2019-01-03(a)(1), (5)

However, the attorney's limited release does not expressly mention the stock purchase agreement, and defendant failed to establish by documentary evidence that the release encompasses claims relating to the stock purchase agreement ( see Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 600 [2d Dept 2017]; CPLR 3211[a][1], [5]). Further, accepted as true on this motion to dismiss ( see 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 152 [2002]), the pleadings establish that the stock purchase agreement was not validly assigned to the attorney, and the documentary evidence is insufficient to resolve the factual issues related to the dealings between plaintiff and his former attorney.

Section 3211(a)(5) places the initial burden on a defendant moving to dismiss as time-barred to establish when the plaintiff's claims accrued.

Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc. · filed 2019-01-03(a)(5)

"In moving to dismiss the complaint pursuant to CPLR 3211 (a) (5), defendant[s] bore the initial burden to establish, prima facie, that the action was time-barred, and, to do so, [were] required to establish when plaintiff[s'] causes of action accrued" ( Northeastern Indus. Park, Inc. v Hoosick Val. Contrs., Inc. , 106 AD3d 1182, 1183 [2013] [internal citations omitted]).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively defeats the claim, while CPLR 3211(a)(7) governs dismissal for failure to state a cause of action.

Cassese v. SVJ Joralemon, LLC · filed 2019-01-09(a)(1) and (a)(7)

A motion to dismiss on the basis of CPLR 3211(a)(1) should be granted only where the documentary evidence that forms the basis of the defense is such that it refutes the plaintiff's factual allegations or conclusively disposes of the plaintiff's claims as a matter of law" ( Schiller v Bender, Burrows & Rosenthal, LLP , 116 AD3d 756, 757; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Held v Kaufman , 91 NY2d 425, 430-431). ... Tri-State also established its entitlement to dismissal of the third-party causes of action for contractual indemnification and alleging breach of contract for failure to procure insurance pursuant to CPLR 3211(a)(1).

Section 3211 allows a defendant to seek dismissal of a complaint before trial, including when the claim is barred by a statute of limitations.

Epiphany Community Nursery Sch. v. Levey · filed 2019-02-05(a)(5)

For the purposes of defendants' motion to dismiss we "accept as true the facts as alleged in the complaint [and]. . . accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" ( Sokoloff v Harriman Estates Dev. Corp ., 96 NY2d 409, 414 [2001]).

CPLR 3211(a)(5) requires a defendant seeking dismissal as time-barred to establish prima facie that the limitations period expired; under CPLR 3211(a)(1) and (7), dismissal is improper where documentary evidence does not conclusively establish a defense and the complaint sufficiently pleads the claims.

JFK Family Ltd. Partnership v. Millbrae Natural Gas Dev. Fund 2005, L.P. · filed 2019-02-13(a)(1), (a)(5), and (a)(7)

"On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Kitty Jie Yuan v 2368 W. 12th St., LLC , 119 AD3d 674; see Beroza v Sallah Law Firm, P.C. , 126 AD3d 742). ... Thus, the documentary evidence did not conclusively establish a defense as a matter of law as to the eighth cause of action, alleging breach of contract, and the tenth cause of action, alleging breach of fiduciary duty, insofar as asserted against the individual defendants ( see CPLR 3211[a][1]). Further, accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every favorable inference ( see CPLR 3211[a][7]; Leon v Martinez , 84 NY2d 83, 88; Raach v SLSJET Mgt. Corp. , 134 AD3d 792, 793), the fifth amended complaint sufficiently pleaded causes of action alleging breach of contract and breach of fiduciary duty in the eighth and tenth causes of action, respectively, as against the individual defendants. Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the eighth and tenth causes of action in the fifth amended complaint insofar as asserted against the individual defendants.

Section 3211(b) allows a party to move to dismiss a defense that is not stated or lacks merit, and requires the plaintiff to show that the defense is legally meritless.

Edwards v. Walsh · filed 2019-02-20(b)

Turning to the affirmative defenses, "[A] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). "Thus, when moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law'" ( Greco v Christoffersen , 70 AD3d 769, 771, quoting Vita v New York Waste Servs., LLC , 34 AD3d 559, 559). Here, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the Walsh defendants' first affirmative defense, alleging that the amended complaint failed to state a cause of action. The plaintiff met his burden of demonstrating that this affirmative defense was without merit as a matter of law ( see Mazzei v Kyriacou , 98 AD3d 1088, 1089; Greco v Christoffersen , 70 AD3d at 771).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the allegations and conclusively establishes a defense, while section 3211(a)(7) requires accepting pleaded facts as true and asks whether they fit a cognizable legal theory.

Wynkoop v. 622A President St. Owners Corp. · filed 2019-02-27(a)(1) and (7)

On a motion to dismiss a complaint or counterclaims pursuant to CPLR 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the pleader the benefit of every 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; Sokol v Leader , 74 AD3d 1180, 1181-1182). ... Accordingly, we agree with the Supreme Court's denial of that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaims asserted by the individual defendants.

CPLR 3211(a) governs motions to dismiss and requires the court to apply the stated burdens and standards for challenges based on standing, limitations, and failure to state a cause of action.

Witty v. 1725 Fifth Ave. Corp. · filed 2019-03-06(a)

In considering a motion to dismiss the complaint for failure to state a cause of action, the court must afford the complaint a liberal construction, take the allegations of the complaint as true, and provide the plaintiff the benefit of every possible favorable inference ( see EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11, 19; Leon v Martinez , 84 NY2d 83, 88). "Where evidentiary material is submitted and considered on a motion [*3]to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Rabos v R & R Bagels & Bakery, Inc. , 100 AD3d 849, 851-852; see Guggenheimer v Ginzburg , 43 NY2d 268, 275).

On a motion to dismiss, the court may consider opposing affidavits and accept them as true to remedy a pleading defect.

Lynn v. Maida · filed 2019-03-26(a)(7)

However, plaintiffs' affidavits in opposition to defendants' motion — which the court properly considered and accepted as true ( see e.g. Cron v Hargro Fabrics , 91 NY2d 362, 366 [1998]) — remedies that defect.

Section 3211(a)(7) permits dismissal of a counterclaim when its alleged facts do not fit within any cognizable legal theory, after accepting those facts as true and drawing every favorable inference for the pleader.

Wilson 3 Corp. v. Deutsche Bank Natl. Trust Co. · filed 2019-05-08(a)(7)

"On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"

CPLR 3211(a)(1) requires documentary evidence to utterly refute the plaintiff's factual allegations and conclusively establish a defense; under CPLR 3211(a)(3), a defendant moving for lack of standing bears the prima facie burden.

Phoenix Grantor Trust v. Exclusive Hospitality, LLC · filed 2019-05-08(a)(1) and (a)(3)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... Likewise, we agree with the Supreme Court that the appellants failed to meet their burden to warrant dismissal pursuant to CPLR 3211(a)(3) for lack of standing.

CPLR 3211(a)(7) requires courts to accept pleaded facts as true and determine whether they fit a cognizable legal theory; CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense.

Hinnant v. Carrington Mtge. Servs., LLC · filed 2019-05-08(a)(7), (a)(1)

On a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... A motion to dismiss pursuant to CPLR 3211(a)(1) 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. of N.Y. , 98 NY2d 314, 326; see Leon v Martinez , 84 NY2d at 88).

Section 3211(a)(5) requires courts reviewing a statute of limitations dismissal motion to accept the complaint's facts as true and give the plaintiff every favorable inference.

Bank of N.Y. Mellon v. Bissessar · filed 2019-05-15(a)(5)

In resolving a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground that the cause of action is barred by the statute of limitations, the court must accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference ( see Bank of N.Y. Mellon v Celestin , 164 AD3d 733, 735; U.S. Bank N.A. v Gordon , 158 AD3d 832, 834; Amrusi v Nwaukoni , 155 AD3d 814, 816).

Section 3211(a)(7) requires the court to accept the complaint's facts as true, give the plaintiff every favorable inference, and decide whether those facts fit any cognizable legal theory.

Sapienza v. Notaro · filed 2019-05-29(a)(7)

"In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff [*2]the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shaffer v Gilberg , 125 AD3d 632, 634).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint and conclusively establishes a defense, while CPLR 3211(a)(7) permits dismissal when the pleaded facts do not fit a cognizable legal theory.

J & JT Holding Corp. v. Deutsche Bank Natl. Trust Co. · filed 2019-06-05(a)(1) and (a)(7)

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ... "On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... "Accordingly, the Supreme Court should have granted Deutsche Bank's motion pursuant to CPLR 3211(a) to dismiss the complaint."

CPLR 3211(a)(1) permits dismissal based on documentary evidence that conclusively refutes the allegations, and CPLR 3211(a)(7) permits dismissal when the complaint fails to state a cause of action.

Bulbin v. O'Carroll · filed 2019-06-12(a)(1) and (a)(7)

We agree with the Supreme Court's determination denying that branch of the defendants' renewed motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1). ... However, the Supreme Court should have granted that branch of the defendants' renewed motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7). Accepting the facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; Sokol v Leader , 74 AD3d 1180, 1181), the complaint fails to state a cause of action ( see CPLR 3211[a][7]).

CPLR 3211 permits dismissal based on documentary evidence, failure to state a cause of action, or lack of subject matter jurisdiction, subject to the stated standards.

Hanley v. Hanley · filed 2019-06-13(a)(1), (a)(2) and (a)(7)

"Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law" ( Haire v Bonelli , 57 AD3d 1354, 1356 [3d Dept 2008], [citations omitted]). ... In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), "the Court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" ( EBC 1, Inc. v Goldman, Sachs & Co. , 5 NY3d 11 , 19 [2005]). ... Finally, a cause of action must be dismissed under CPLR 3211 (a) (2) where it is shown that the Court lacks subject matter jurisdiction.

Section 3211 permits dismissal when a plaintiff lacks standing or when a claim is barred by res judicata.

Wiki Chen v. Sunshine World Travel · filed 2019-06-24(a)(3) and (a)(5)

We sustain the grant of defendants' motion to dismiss these consolidated small claims actions, albeit for reasons slightly different than those stated by Civil Court. The underlying small claims actions, seeking damages arising from the purchase of an airline ticket, were properly dismissed on the ground that plaintiff lacks standing to sue, since he was not the purchaser of any airline ticket from defendants ... We agree with plaintiff, however, that his claims could not be dismissed on res judicata grounds, since the dismissal of the prior small claims action "without prejudice" was not a dismissal on the merits for res judicata purposes.

Section 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while section 3211(a)(7) tests whether the complaint states a cause of action under liberal pleading standards.

Magee-Boyle v. Reliastar Life Ins. Co. of N.Y. · filed 2019-06-26(a)(1), (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations in the complaint must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences ( see Leon v Martinez , 84 NY2d 83, 87). ... To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326).

Section 3211 allows a defendant to seek dismissal of a complaint on specified procedural and substantive grounds, including lack of personal jurisdiction, documentary evidence, and failure to state a cause of action.

Piccoli v. Cerra, Inc. · filed 2019-07-17

The ultimate burden of proof regarding personal jurisdiction rests with the plaintiff ( see Shatara v Ephraim , 137 AD3d 1248, 1249; Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC , 90 AD3d 977, 978). To defeat a CPLR 3211(a)(8) motion to dismiss a complaint, the plaintiff, however, need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court ... To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ... When determining a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ...

CPLR 3211 permits dismissal motions on specified grounds, including lack of capacity and failure to state a cause of action, subject to timing rules.

U.S. Bank N.A. v. Herman · filed 2019-07-24(a)(3) and (a)(7)

The branch of Benson's motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against it was untimely, as Benson had interposed an answer to the complaint prior to filing the subject motion ( see CPLR 3211[e]; Hendrickson v Philbor Motors, Inc. , 102 AD3d 251, 257; cf. Deutsche Bank Natl. Trust Co. v Ramharrack , 139 AD3d 787, 789). ... Regarding the branch of Benson's motion which was pursuant to CPLR 3211(a)(7), "[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court [*2]must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shah v Exxis, Inc. , 138 AD3d 970, 971; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211(a)(4) permits discretionary dismissal when another action or proceeding between the same parties for the same cause is pending in a state or federal court.

CGI Tech. & Solutions, Inc. v. New York State Off. of Mental Health · filed 2019-08-28(a)(4)

Defendants further contend that the Complaint should be dismissed under CPLR 3211 (a) (4), which grants a court discretion to dismiss an action or proceeding where "there is another action [or proceeding] pending between the same parties for the same cause of action in a court of any state or the United States." Dismissal of a case due to the pendency of a prior action or proceeding is warranted "where there is a substantial identity of the parties and causes of action" ( Cherico, Cherico & Assoc. v Midollo , 67 AD3d 622 , 622 [2d Dept 2009]; see Matter of Schaller v Vacco , 241 AD2d 663, 663 [3d Dept 1997]). For substantially the reasons stated above, dismissal under CPLR 3211 (a) (4) is not warranted since "the nature of the relief sought [by CGI herein] is not the same or substantially the same" as that available in the Court of Claims ( Kent Dev. Co. v Liccione , 37 NY.2d 899, 901 [1975]).

CPLR 3211(a) permits a defendant to make a pre-answer motion to dismiss, which may be denied when the complaint states tort claims that are not barred by the applicable limitations period.

Abelesz v. City of New York · filed 2019-09-11(a)

Accordingly, the Supreme Court should have denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.

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

Doe v. Bloomberg, L.P. · filed 2019-09-24(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), "[w]e accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]).

CPLR 3211(a)(3) requires a defendant challenging standing to establish the plaintiff's lack of standing prima facie.

Wells Fargo Bank, N.A. v. LJ Equities II, LLC · filed 2019-09-25(a)(3)

On a 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]; U.S. Bank N.A. v Clement , 163 AD3d 742, 743; Arch Bay Holdings, LLC-Series 2010B v Smith , 136 AD3d 719, 719).

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

Arnell Constr. Corp. v. New York City Sch. Constr. Auth. · filed 2019-11-06(a)(1) and (a)(7)

On a motion to dismiss the 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 to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see CPLR 3026; Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141; Leon v Martinez , 84 NY2d 83, 87-88). ... A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) "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. of N.Y. , 98 NY2d 314, 326; see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc. , 20 NY3d 59, 63; Leon v Martinez , 84 NY2d at 88).

A CPLR 3211(a) motion to dismiss cannot secure dismissal after a default judgment when the movant has established no grounds to vacate that judgment.

HSBC Bank USA, N.A. v. Perry · filed 2019-12-04(a)

Since the judgment of foreclosure and sale was entered upon the appellant's default, and she has failed to establish any grounds for relief from that judgment, we agree with the Supreme Court's denial of that branch of her motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her on the grounds that the plaintiff failed to comply with RPAPL 1303, 1304, and 1306 ( see U.S. Bank N.A. v Gilchrist , 172 AD3d 1425, 1426-1427; Deutsche Bank Trust Co., Ams. v Stathakis , 90 AD3d 983, 984; Holubar v Holubar , 89 AD3d 802).

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

Matter of Steinberg · filed 2020-05-14

"Where, as here, we are tasked with resolving a motion to dismiss pursuant to CPLR 3211, we must accept the facts as alleged in the [petition] as true and accord the [petitioner] the benefit of every possible favorable inference" ( Krog Corp. v Vanner Group, Inc. , 158 AD3d 914, 915 [2018] [citations omitted]; see New York State Workers' Compensation Bd. v Consolidated Risk Servs., Inc. , 125 AD3d 1250, 1252-1253 [2015]).

An objection that a motion to dismiss was untimely may be waived by accepting the motion without objection.

Castro v. Pfizer, Inc. · filed 2020-05-20

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in determining that the plaintiff waived her contention that Mylan's motion to dismiss was untimely ( see Rozz v Law Offs. of Saul Kobrick, P.C. , 134 AD3d 920, 921-922; Spagnoletti v Chalfin , 131 AD3d 901, 901-902; Glass v Captain Hulbert House, LLC , 103 AD3d 607, 608; Lai Har Chin v Yard , 40 AD3d 590, 590-591; Volin v City Beach Catering Corp ., 166 AD2d 583, 584).

A motion to dismiss under CPLR 3211(a) must be made before the responsive pleading is due.

Deutsche Bank Natl. Trust Co. v. Hall · filed 2020-07-29(e)

Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant's time to answer the complaint ( see CPLR 3211[f]). Such a motion must be made "before service of the responsive pleading is required" (CPLR 3211[e]), or it is untimely ( see Bennett v Hucke , 64 AD3d 529, 530).

A motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7) may be made at any time, including after the note of issue is filed.

M&E 73-75, LLC v. 57 Fusion LLC · filed 2020-07-30(a)(7)

Supreme Court properly considered the seller's post note of issue CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action because it can be made at any time (CPLR 3211[e]).

Section 3211(e) makes a motion to dismiss filed after the movant has answered impermissible.

Figueroa v. Yagudaev · filed 2020-09-04(e)

This court finds that Giron 's application for dismissal pursuant to CPLR §3211 (a)(]) was impermissibly asserted since Giron filed its answer prior to filing the instant motion.

Section 3211(e) limits when a motion to dismiss may be made.

Board of Mgrs. of Be@William Condominium v. 90 William St. Dev. Group LLC · filed 2020-10-29(e)

Defendants' first motion for the same relief in October 2014 was untimely under CPLR 3211(e).

Under CPLR 3211(d), a court may deny disclosure sought to oppose a motion to dismiss when the opponent fails to identify particular evidence that would justify opposition.

Long Is. Med. Anesthesiology, P.C. v. Rosenberg Fortuna & Laitman, LLP · filed 2021-02-17(d)

Here, the Supreme Court providently exercised its discretion in denying this branch of the plaintiffs' cross motion in light of their failure to identify particular evidence which would justify their opposition to the motion.

Section 3211(b) does not allow a plaintiff to strike a failure-to-state-a-cause-of-action defense because that would test the sufficiency of the plaintiff’s own claim.

Island Life Chiropractic Pain Care, PLLC v. Zipcar · filed 2021-08-27(b)

Plaintiff also ignored that "no motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" ( Butler v Catinella , 58 AD3d 145, 150 [2008]; see also Jacob Marion, LLC v Jones , 168 AD3d 1043, 1044 [2019]; Mazzei v Kyriacou , 98 AD3d 1088, 1089 [2012]).

A motion to dismiss on statute of limitations grounds must be timely under subsection (e), but the defense remains available if asserted in a responsive pleading.

Han v. New York City Tr. Auth. · filed 2022-03-15(e)

NYCTA did not waive its affirmative defense under CPLR 3211(a)(5) because a defense based upon the statute of limitations is waived only if it is neither asserted in a responsive pleading or in a timely motion (Nestor I, LLC v Moriarty-Gentile , 179 AD3d 936, 938 [2d Dept 2020]). Here the affirmative defense was timely asserted in NYCTA's reply to the counterclaim. The motion to dismiss under CPLR 3211(a)(5), however, was not timely made, as required under CPLR 3211(e) ( U.S. Bank N.A. v Gilchrist , 172 AD3d 1425, 1426-1427 [2d Dept 2019]).

A motion to dismiss under CPLR 3211 cannot resolve a determination that requires discovery.

Dau v. 16 Sutton Place Apt. Corp. · filed 2022-05-19

While the board of directors may be able to establish through discovery that its actions were in fact a proper exercise of its business judgment ( see generally Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]), that determination cannot be made on a motion to dismiss under CPLR 3211.

Section 3211(a)(1) permits dismissal based on documentary evidence, while section 3211(a)(7) permits dismissal for failure to state a cause of action.

Hahn v. Stone House Props. LLC · filed 2022-06-02(a)(1), (a)(7)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered May 11, 2021, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7), unanimously modified, on the law, to deny the motion as to a cause of action for breach of fiduciary duty, and otherwise affirmed, without costs. Although the complaint does not explicitly articulate a cause of action for breach of fiduciary duty, such a cause of action is manifest in its factual allegations, and the documentary evidence fails to utterly refute those allegations ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

CPLR 3211(e)'s deadline for making a motion to dismiss before an answer does not apply to taxing authorities in RPTL article 7 proceedings.

Matter of DP Fuller Family LP v. City of Canandaigua · filed 2022-07-08(e)

As the parties agree, "taxing authorities are not bound by the requirement of CPLR 3211 (e) that a motion to dismiss be made prior to the time in which to serve an answer" ( Matter of Village Sq. of Penna v Semon , 290 AD2d 184, 187 [3d Dept 2002], lv dismissed 98 NY2d 647 [2002]) because RPTL 712 (1) specifies that a taxing authority need not even answer, that a failure to answer is deemed a denial of the allegations, and that "[a] motion to dismiss the [*4]petition shall not be denied merely on the ground that an answer has been deemed made" ( see Village Sq. of Penna , 290 AD2d at 187; Matter of Abramov v Board of Assessors, Town of Hurley , 257 AD2d 958, 960 [3d Dept 1999]).

A defendant must make a CPLR 3211(a)(5) motion before service of the responsive pleading is required.

Ezra Huber & Assoc., P.C. v. Genevieve Lane Lopresti · filed 2022-12-07(e)

Since the Supreme Court should not have granted that branch of the defendant's cross motion which was to compel the plaintiff to accept her late answer, the defendant's separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint was untimely, as a defendant must make this motion before service of the responsive pleading is required ( see id. § 3211[e]; Wan Li Situ v MTA Bus Co. , 130 AD3d 807, 808).

A motion to dismiss for failure to state a claim under CPLR 3211(a)(7) may be brought at any time.

Belair & Evans LLP v. Rizzo · filed 2022-12-08(e)

Motions to dismiss pursuant to CPLR 3211(a)(7) may be brought at any time ( see CPLR 3211[e]), and plaintiff's reply to the counterclaims asserted CPLR 3211(a)(1) as an affirmative defense, thus preserving plaintiff's right to move to dismiss the counterclaims pursuant to that provision ( see id. ; M & E 73-75 LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020], lv dismissed 36 NY3d 1086 [2021]).

A motion to dismiss under CPLR 3211 is not untimely when the time to answer never began to run.

Economy Premier Assur. Co. v. Miflex 2 S.p.A. · filed 2023-01-25(e)

Since the defendant was not subject to the jurisdiction of New York, the plaintiff's service of process upon it was not valid ( see CPLR 313; Ruffin v Lion Corp. , 15 NY3d 578, 583 n 3; Hopstein v Cohen , 143 AD3d 859, 860). Moreover, the defendant's cross motion to dismiss the complaint was not untimely, since the time to answer the complaint never began to run ( see CPLR 313; CPLR 320[a]; CPLR 3211[e]; Hopstein v Cohen , 143 AD3d at 860).

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

Arch Ins. Co. v. Docnetwork, Inc. · filed 2023-05-23

On a motion to dismiss pursuant to CPLR 3211, the factual allegations contained within the pleadings are accepted as true and afforded "every possible favorable inference" ( Leon v Martinez , 84 NY2d 83, 87 [1994]).

A cross-motion to dismiss can be timely under CPLR 3211(e) even when filed after the answer.

Hammond v. Equinox Holdings LLC · filed 2023-08-10(e)

As an initial matter, the court correctly determined that defendant's cross-motion to dismiss was timely, even though it was filed after the answer ( see CPLR 3211[e]).

Section 3211(a)(7) requires courts to accept pleaded facts as true, give plaintiffs favorable inferences, and decide whether the alleged facts fit a recognized legal theory.

Renaud v. Bedford- Carp Constr., Inc. · filed 2023-11-08(a)(7)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Palero Food Corp. v Zucker , 186 AD3d 493, 495 [internal quotation marks omitted]).

CPLR 3211(a)(1), (7), and (8) address dismissal based on documentary evidence, failure to state a claim, and lack of personal jurisdiction, respectively.

Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong · filed 2023-11-09(a)(1), (a)(7), and (a)(8)

Accordingly, the documentary evidence submitted does not utterly refute plaintiff's claims seeking to recover the unpaid common charges ( see Goshen v Mutual Life Ins. Co. of N. Y. , 98 NY2d 314, 326 [2002]). Defendant's contentions that plaintiff and its attorneys have engaged in improper debt collection activity, violated General Business Law § 349(a), or engaged in other improper or sanctionable conduct, does not support dismissal of the complaint ( see Vescon Constr., Inc. v Gerelli Ins. Agency, Inc ., 97 AD3d 658 [2d Dept 2012], lv denied 20 NY3d 861 [2013]). As for defendant's claim that she was not properly served with the summons and complaint, defendant made a motion to compel plaintiff to produce its annual reports. By appearing in the action, litigating on the merits of her disputes with plaintiff, and seeking affirmative relief, she conferred personal jurisdiction on the court ( see Rubino v City of New York , 145 AD2d 285, 289 [1st Dept 1989]).

Section 3211 permits a defendant to seek dismissal before answering for specified defects, including lack of personal jurisdiction and failure to state a cause of action.

Medina v. Jet Aviation Holdings USA, Inc. · filed 2023-11-14(a)(8), (a)(7)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about September 30, 2022, which, insofar as appealed from as limited by the briefs, denied defendants Jet Aviation Holdings USA, Inc., Jet Aviation Teterboro, L.P., and General Dynamics Corporation's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint, unanimously reversed, on the law, with costs, and the motion granted. ... Order, same court and Justice, entered on or about March 14, 2022, which, insofar as appealed from as limited by the briefs, denied defendants Daniel S. Loeb, Third Point LLC, and Teragram, LLC's motion pursuant to 3211(a)(7) to dismiss the complaint, unanimously modified, on the law, to the extent of granting the motion dismissing the complaint as against Daniel S. Loeb and Teragram, LLC, and otherwise affirmed, without costs. ... However, the complaint does not sufficiently plead a cause of action against Loeb because it fails to allege that Loeb acted outside of his capacity as an officer of Third Point ( see Worthy v New York City Hous. Auth. , 21 AD3d 284, 287 [1st Dept 2005]). The complaint also fails to state a cause of action against Teragram. Based on an affidavit of Third Point's CFO, and as buttressed by the aircraft service agreement, of which Teragram was not a party, Teragram only handled Loeb's personal finances, and thus owed no duty to plaintiff to give rise to any liability.

CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the complaint and conclusively establishes a defense, while CPLR 3211(a)(7) requires accepting pleaded facts as true and asks only whether they fit a cognizable legal theory.

MJ Lilly Assoc., LLC v. Ovis Creative, LLC · filed 2023-11-15(a)(1), (a)(7)

"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" ... "'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'".

CPLR 3211(a)(1) permits dismissal only when documentary evidence conclusively refutes the complaint, while CPLR 3211(a)(7) requires accepting pleaded facts as true and granting favorable inferences when assessing whether a cause of action is stated.

City of Long Beach v. Agostisi · filed 2023-11-15(a)(1), (7)

Contrary to the defendant's contention, the Supreme Court properly denied the defendant's motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1). A motion pursuant to CPLR 3211(a)(1) to dismiss a cause of action on the ground that the cause of action is barred by documentary evidence may be granted only "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mut. Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... However, the Supreme Court should have granted those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the second, third, fourth, fifth, eighth, and ninth causes of action. "In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, [and] accord the plaintiff the benefit of every possible favorable inference" ( Langley v Melville Fire Dist. , 213 AD3d 748, 750; see Leon v Martinez , 84 NY2d 83, 87).

Section 3211(d) permits denial of dismissal when essential opposing facts may exist but cannot yet be stated, and section 3211(a)(5) provides a specified ground for dismissal.

Ark 357 Doe v. Jesuit Fathers & Bros. · filed 2023-11-21(d), (a)(5)

While appellants argue that plaintiffs fail to allege specific facts that they had notice of the priests' criminal proclivities, at this pre-answer stage of the litigation, such information is in the sole possession and control of appellants. Therefore, dismissal of these causes of action was properly denied on this ground as "facts essential to justify opposition may exist but cannot then be stated" ( see CPLR 3211 [d]; G.T. v Roman Catholic Diocese of Brooklyn, N. Y. , 211 AD3d 413 [1st Dept 2022]). The court also correctly denied appellants' motions to dismiss pursuant to CPLR 3211(a)(5).

CPLR 3211 permits dismissal based on conclusive documentary evidence, failure to state a cause of action, or insufficient facts to oppose the motion pending disclosure.

Vasquez v. Kennedy · filed 2023-11-22(a)(1), (a)(7), and (d)

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law ( see Gruber v Donaldsons, Inc. , 201 AD3d 887, 888; Leader v Steinway, Inc. , 180 AD3d 886, 887). "Documents that qualify as documentary evidence include judicial records, mortgages, deeds, and contracts" ( Porat v Rybina , 177 AD3d 632, 633). When deciding a motion to dismiss a complaint for failure to state a cause of action under CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88; Cali v Maio , 189 AD3d 1337, 1338). ... CPLR 3211(d) provides that where it appears "that facts essential to justify opposition [to a motion pursuant to CPLR 3211] 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 [*3]order as may be just."

CPLR 3211(a)(1) and (7) requires courts to construe pleadings liberally, accept allegations as true, give plaintiffs every favorable inference, and consider opposing affidavits to cure complaint defects.

Moises-Ortiz v. FDB Acquisitions LLC · filed 2023-11-28(a)(1) and (7)

On the separate motions to dismiss the third third-party claims and fourth third-party claims seeking common-law indemnification and contribution, pursuant to CPLR 3211(a)(1) and (7), a court "must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference" ( Chanko v American Broadcasting Cos. Inc ., 27 NY3d 46, 52 [2016]). A court may consider affidavits submitted by a party opposing a motion to dismiss pursuant to CPLR 3211 to remedy any defects in a complaint ( see Rovello v Orofino Realty Co ., 40 NY2d 633, 635-636 [1976]).

A motion under CPLR 3211(a)(7) may be brought at any time.

Zhang v. City of New York · filed 2023-12-07(a)(7)

A CPLR 3211(a)(7) motion may also be brought at any time ( see M & E 73-75, LLC v 57 Fusion LLC , 189 AD3d 1, 6 [1st Dept 2020]).

A court may treat a mislabeled CPLR 3211(b) motion to dismiss a complaint as a CPLR 3211(a) motion when the moving papers make the grounds clear and the plaintiff is not prejudiced.

Handley v. BH Props. NYC, LLC · filed 2024-03-26(b)

If a defendant purports to seek dismissal of a complaint or part of it under CPLR 3211 (b), the court can disregard the mislabeling and treat the motion as made under CPLR 3211 (a), provided that specific subdivision (a) grounds upon which defendant is relying are clear from the moving papers, and the plaintiff is not prejudiced by the mislabeling (see CPLR 2001).

A motion to dismiss under CPLR 3211 must be made before the defendant answers; a defense preserved in the answer may instead support a later summary judgment motion.

Guerra v. American Access Care Physician, PLLC · filed 2024-03-29(e)

Consequently, to the extent that the Park Avenue defendants seek relief on the ground articulated in CPLR 3211(a) (3), such relief is unavailable pursuant to that statute at this juncture, but is available only via a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d 276, 282 [1982] [“we answer in the affirmative the question . . . concerning whether defendant may move after answer for summary judgment on his jurisdictional defense”]).

A party may bring a motion to dismiss under CPLR 3211(a)(7) at any time.

Illinois Land Invs. III LLC v. Chicago WB Invs., LLC · filed 2024-04-04(a)(7)

But given that the parties have fully briefed the issue, and that a party may bring a CPLR 3211 (a) (7) motion to dismiss at any time, the court reaches the merits of defendant’s request in the interests of economy.

CPLR 3211(a) permits dismissal of a complaint for specified defects, including lack of standing, expiration of the statute of limitations, and failure to state a cause of action.

Kefalas v. Pappas · filed 2024-04-10(a)(3), (a)(5), and (a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must "accept the facts as alleged in [a] 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 Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141).

CPLR 3211(a)(7) permits dismissal when a complaint is legally insufficient to state a cause of action.

Rizzo v. Romero · filed 2024-04-11(a)(7)

As such, the court should have denied defendants' motion to dismiss based on their failure to even assert they had such a reasonable basis.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively disposes of the claim, while CPLR 3211(a)(7) tests whether the alleged facts fit a cognizable legal theory.

KB DST Borrower, LLC v. Knights Hill Ireland II DAC · filed 2024-04-11(a)(1) and (a)(7)

To succeed on a CPLR 3211 (a) (1) motion to dismiss, defendants have the "burden of showing that the relied-upon documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" ( Fortis Fin. Servs. v Fimat Futures USA , Inc., 290 AD2d 383, 383 [1st Dept 2002], quoting Scadura v Robillard , 256 AD2d 567, 567 [2d Dept 1998]). On a motion to dismiss under CPLR 3211 (a) (7), the court accepts the facts as alleged in the complaint as true, accords plaintiffs the benefit of any possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory ( Leon v Martinez , 84 NY2d 83 [1994]).

Section 3211(a)(7) requires the court to determine whether the alleged facts fit within a cognizable legal theory.

Armor Bay Constr. Corp. v. Richmond Constr. Inc. · filed 2024-04-12(a)(7)

On a motion pursuant to CPLR §3211(a)(7) to dismiss for a failure to state a cause of action, the court must determine whether the facts as alleged fit within a cognizable legal theory.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense as a matter of law, while CPLR 3211(a)(7) allows consideration of plaintiff affidavits and asks whether the plaintiff has a cause of action.

Board of Mgrs. of the 15 Union Sq. W. Condominium v. BCRE 15 Union Sq. W. LLC · filed 2024-04-16(a)(1), (a)(7)

Under CPLR 3211 (a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. ... In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” Leon v. Martinez, 84 N.Y.2d 83, 88.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while CPLR 3211(a)(7) requires the court to accept alleged facts as true and determine whether they fit a cognizable legal theory.

Air-Sea Packing Group, Inc. v. Applied Underwriters, Inc. · filed 2024-04-17(a)(1), (a)(7)

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 88). ... "On a motion to dismiss pursuant to CPLR 3211(a)(7), as made by the defendants herein, "the court must accept the facts 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" ( Benjamin v Yeroushalmi , 212 AD3d 758, 760 [internal quotation marks omitted]).

Section 3211(a)(7) requires courts to accept pleaded facts as true and give the complaint every favorable inference, while section 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the allegations and conclusively establishes a defense as a matter of law.

1470 39th St., LLC v. Goldberg · filed 2024-04-17(a)(1), (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; Davids v State of New York , 159 AD3d 987, 989). ... The Supreme Court also properly denied that branch of the defendant's motion to dismiss the amended complaint pursuant to CPLR 3211(a)(1). A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by 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" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d 714).

Section 3211 motions to dismiss are evaluated under a liberal construction of the pleading; under subsection (a)(7), the court asks whether the alleged facts fit a cognizable legal theory.

Armor Bay Constr. Corp. v. Richmond Constr. Inc. · filed 2024-04-12(a)(7)

When considering a motion to dismiss pursuant to CPLR §3211 a pleading is to be afforded a liberal construction.

CPLR § 3211 permits dismissal on specified grounds, including documentary evidence, lack of subject matter jurisdiction, lack of standing, and failure to state a cause of action.

Matter of Bismout (Mosheyev) · filed 2024-04-12(a)(1), (a)(2), (a)(3), and (a)(7)

Accordingly, this Court clearly has jurisdiction to entertain these proceedings, and the branch of respondents' motion to dismiss the petition pursuant to CPLR § 3211(a)(2) is denied. ... As such, the branch of the motion seeking dismissal on lack of standing grounds is denied. ... On a motion to dismiss a claim for failure to state a cause of action, the court is not called upon to determine the truth of the allegations in the petition ... ... The Court's role is limited to determining whether the pleading states a cause of action ... ... Therefore, the branch of respondents' motion seeking dismissal pursuant to CPLR §3211[a][7] is denied. ... CPLR § 3211[a][1] permits dismissal only where the documentary evidence "utterly refutes" the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ... ... Accordingly, the branch of the motion seeking dismissal of the petition on the grounds of CPLR 3211[a][1] is likewise denied.

CPLR 3211(a)(5) places the initial burden on a defendant moving to dismiss a time-barred cause of action to show prima facie that the commencement period has expired, while CPLR 3211(a)(7) requires accepting pleaded facts as true and determining whether they fit any cognizable legal theory.

Rubin v. Poly Prep Country Day Sch. · filed 2024-05-01(a)(5) and (a)(7)

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired" ( Haddad v Muir , 215 AD3d 641, 642; see Schearer v Fitzgerald , 217 AD3d 980, 981). ... On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, 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 [*2]Martinez , 84 NY2d 83, 87-88; see Davila v Orange County , 215 AD3d 632, 633).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the complaint, while section 3211(d) permits denial or continuance for disclosure when essential facts may exist but cannot yet be stated.

Morrison v. New York Archdiocese · filed 2024-05-01(a)(1) and (d)

On a motion to dismiss pursuant to CPLR 3211(a), the complaint is afforded a liberal construction and the plaintiff is given the benefit of every possible favorable inference ( see Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 105; Leon v Martinez , 84 NY2d 83, 88). 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).

A motion under CPLR 3211(a) to dismiss a complaint must be timely.

Morris v. Zimmer · filed 2024-05-01(a)

While the Supreme Court properly denied the plaintiffs' motion for leave to enter a default judgment against the defendant, the plaintiffs correctly contend that the court should have denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint because it was untimely ( see Yan Ping Xu v Van Zwienen , 212 AD3d at 875; Holubar v Holubar , 89 AD3d 802, 802).

Section 3211(a)(1) requires dismissal only when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law.

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

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).

CPLR 3211(a) allows dismissal for specified defects, including failure to state a cause of action and lack of subject matter jurisdiction.

Kluska v. Montefiore St. Luke's Cornwall · filed 2024-05-01(a)(7), (a)(2)

On a motion pursuant to CPLR 3211(a)(7) to dismiss 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... Accordingly, the Supreme Court properly determined that the defendant was not entitled to dismissal of the complaint pursuant to CPLR 3211(a)(7). In light of the foregoing, the Supreme Court also properly determined that the defendant was not entitled to dismissal of the complaint pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction.

CPLR 3211 permits dismissal on specified grounds, requires conclusive documentary evidence for dismissal under subsection (a)(1), and allows denial or a continuance when essential facts may exist but cannot yet be stated.

Hansen v. New York Archdiocese · filed 2024-05-01(a)(1), (a)(7), and (d)

On a motion to dismiss pursuant to CPLR 3211(a), the complaint is afforded a liberal construction and the plaintiff is given the benefit of every possible favorable inference ( see Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 105; Leon v Martinez , 84 NY2d 83, 88). 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."

CPLR 3211(a)(5) places the initial burden on the defendant to show prima facie that the limitations period expired, while CPLR 3211(a)(7) requires accepting pleaded facts as true and deciding whether they fit a cognizable legal theory.

Feaster v. Poly Prep Country Day Sch. · filed 2024-05-01(a)(5) and (a)(7)

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired" ( Haddad v Muir , 215 AD3d 641, 642; see Schearer v Fitzgerald , 217 AD3d 980, 981). ... "On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, 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 Davila v Orange County , 215 AD3d 632, 633).

CPLR 3211(a) permits a defendant to seek dismissal when the plaintiff lacks standing, and the defendant bears the burden of establishing that lack of standing.

Alsaidi v. Alsaede · filed 2024-05-01(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" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]). ... Here, the Supreme Court providently exercised its discretion by granting the plaintiff's cross-motion for leave to amend the complaint, and properly denied those branches of the appellants' motion which were, in effect, to dismiss the fourth, fifth, and sixth causes of action of the amended complaint. Contrary to the appellants' contention, Alsaidi did not lack standing to sue derivatively on behalf of Saber ( see Tzolis v Wolff , 10 NY3d 100, 103; Recine v Recine , 201 AD3d 827, 829; Pokoik v Norsel Realties , 164 AD3d 1124, 1125).

CPLR 3211(a)(5) places the initial burden on a defendant seeking dismissal based on limitations to make a prima facie showing that the time to sue expired, while CPLR 3211(a)(7) requires courts to accept pleaded facts as true, draw favorable inferences, and assess only legal sufficiency.

Lek v. LeK · filed 2024-05-01(a)(5), (a)(7)

A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on grounds that it is barred by the statute oflimitations bears the initial burden of proving, prima facie, that the time to sue has expired. ... On a motion to dismiss for failure to state a cause of action under CPLR 3211 ( a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. ... A court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its only function is to determine whether, from facts alleged and inferences drawn therefrom, plaintiff has stated the elements of a cognizable cause of action.

Section 3211 permits dismissal based on documentary evidence that conclusively establishes a defense, specified preclusion grounds, or failure to state a claim under the standards applied by the court.

Knight v. HSBC Bank N.A. · filed 2024-05-02(a)(5), (a)(1), and (a)(7)

CPLR 3211(a)(5) provides, in relevant part, that a party may move to dismiss a cause of action on the ground that the “the cause of action may not be maintained because of . . . collateral estoppel . . . [or] res judicata . . . “. ... “A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” ... On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83. 87-88 [1994]; see also Chapman, Spira & Carson, LLC v Helix BioPharma Corp., 115 AD3d 526, 527 [1st Dept 2014]).

CPLR 3211 permits dismissal based on documentary evidence, another pending action, or failure to state a cause of action.

Nosegbe v. Charles · filed 2024-05-03(a)(1), (a)(4), and (a)(7)

Even if plaintiff is correct that the court erred in relying on CPLR 3211 (a) (1) in granting the motion to that extent, we nevertheless conclude that the court properly granted the motion insofar as it seeks to dismiss the first cause of action under CPLR 3211 (a) (7). ... We agree with plaintiff, however, that the court abused its discretion in granting the motion to the extent that it seeks to dismiss the second and fourth causes of action pursuant to CPLR 3211 (a) (4), under which courts have broad discretion in determining whether to dismiss an action where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." ... Further, "where . . . a plaintiff seeks the same damages for the same alleged injuries relating to the same transaction from close corporate affiliates , a court may properly make a finding that parties have 'substantially similar' identities for purposes of the first-in-time rule" ... We agree with plaintiff that the court erred in using text message excerpts to justify dismissal of the fourth cause of action or, indeed, any cause of action. ... "To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" ... Moreover, the text messages do not "conclusively establish[ ] a defense as a matter of law" with respect to the fourth cause of action ... To the extent that the court granted defendants' motion insofar as it seeks to dismiss the second cause of action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, we agree with plaintiff that the court erred in dismissing the second cause of action on that ground.

CPLR 3211 permits dismissal based on conclusive documentary evidence or failure to state a cause of action.

Salamone v. Deily & Glastetter, LLP · filed 2024-05-03(a)(1), (a)(7)

At oral argument, this Court stated that defendants' motion to the extent it is based on CPLR 321 l(a) (1), the evidence "is not so conclusive". As such, this Court declined to dismiss the action pursuant to CPLR 3211 (a) (1) based on documentary evidence (Tr. Oral Argument at 33-34).

CPLR 3211(a)(7) permits dismissal for failure to state a cause of action under the applicable pleading standard, while CPLR 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff's factual allegations.

Bascom v. 1875 Atl. Ave Dev., LLC · filed 2024-05-08(a)(1) and (a)(7)

When deciding a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, "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'" ( Rudovic v Law Off. of Timothy A. Green , 200 AD3d 814, 815, quoting Leon v Martinez , 84 NY2d 83, 87-88). ... A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations" ( Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co. , 215 AD3d 907, 908 [internal quotation marks omitted]; see Mawere v Landau , 130 AD3d 986, 987). ... Contrary to the defendant's contentions, these allegations are sufficient to state a cause of action ( see Wise v 1614 Madison Partners, LLC , 214 AD3d 550; Chernett v Spruce 1209, LLC , 200 AD3d 596). ... Accordingly, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(7). Likewise, since the documentary evidence submitted did not otherwise utterly refute the allegations of the complaint, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(1) ( see Wise v 1614 Madison Partners, LLC , 214 AD3d at 550).

CPLR 3211(a)(1), (a)(5), and (a)(7) provide grounds for dismissal based on conclusive documentary evidence, expiration of the limitations period, and failure to state a legally cognizable cause of action, respectively.

Koffel v. Cook · filed 2024-05-14(a)(1), (a)(5), and (a)(7)

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011][internal quotation marks and citation omitted]). ... Under CPLR 3211(a)(7), the movant has the burden to demonstrate that the complaint, construed liberally in favor of the plaintiff, states no legally cognizable cause of action (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002].

CPLR § 3211 requires a court deciding a motion to dismiss to accept the complaint's allegations as true and draw reasonable inferences for the plaintiff when deciding whether the claims can succeed on any reasonable view of the facts.

Hello Beautiful Salon, Inc. v. Dimoplon · filed 2024-05-14

It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whethe:r: the party can succeed upon any reasonable view of those facts (Perez v. Y & M Transportation Corporation, 219 AD3d 1449, 196 NYS3d 145 [2d Dept., 2023]). Further, all the allegations in the complaint are deemed true and all reasonable inferences may be drawn i.n favor of the plaintif.:l: (Archival Inc.,. v. 177 Realty Corp., 220AD3d 909, 198.NYS2d567 [2d Dept., 202,3j).

CPLR 3211(a) allows dismissal of a petition or complaint on specified grounds, including lack of standing and failure to join necessary parties.

Matter of Cuomo v. East Williston Union Free Sch. Dist. · filed 2024-05-15(a)

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the respondents/defendants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted by the petitioners/plaintiffs Rita Botensten, Edward Murphy, Richard Kearns, Maureen Kearns, Kathleen Daw, Phil Strauss, Carla Strauss, and John Wanamaker, and substituting therefor a provision granting that branch of the motion, and (2) by adding thereto a provision stating that the denial of that branch of the respondents/defendants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted by the petitioners/plaintiffs Paula Cuomo, Matthew Cuomo, Philip Chappo, Maureen Chappo, Anastasia Katagas, Steven Katagas, Thomas Bassman, Jamie Cutinella, Karen Beresheim, and Dennis Beresheim for failure to join necessary parties is without prejudice to renew; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further, ORDERED that one bill of costs is awarded to the respondents/defendants.

Section 3211(a)(7) requires courts to construe the complaint liberally, accept its facts as true, and give the plaintiff every favorable inference when deciding a motion to dismiss.

Grasso v. Guarino · filed 2024-05-15(a)(7)

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference" ( Angeli v Barket , 211 AD3d 896, 897; see Leon v Martinez , 84 NY2d 83, 87).

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

Thomas v. City of New York · filed 2024-05-20(a)(7)

On a motion to dismiss brought under CPLR §3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]).

CPLR 3211 permits pre-answer dismissal motions, with pleadings construed liberally and allegations accepted as true with favorable inferences.

CJS Indus., Inc. v. Dolce · filed 2024-05-21(a)(1), (a)(5), and (a)(7)

"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium Ill Assn. v Palomino, 78 AD3d 996,996,913 NYS2d 668 [2010]).

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law, while section 3211(a)(7) requires accepting pleaded facts as true and deciding whether they fit any cognizable legal theory.

Gramercy Funds Mgt. LLC v. Schlumberger N.V. · filed 2024-05-29(a)(1), (a)(7)

A cause of action may be dismissed under CPLR 3211(a)(1) only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Section 3211 permits dismissal before trial on specified grounds, including documentary evidence, untimeliness, failure to state a cause of action, and lack of personal jurisdiction.

Grosso v. Cy Twombly Found. · filed 2024-06-02(a)(1), (a)(5), (a)(7), and (a)(8)

On a motion to dismiss pursuant to CPLR 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." ... To prevail on a CPLR 3211 (a)(1) motion to dismiss, the movant has the "burden of showing that the relied-upon documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim." ... "On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired." ... "CPLR 3211 (a) (8) authorizes dismissal of \"one or more causes of action asserted ... on the ground that ... the court has not jurisdiction of the person of the defendant.\"

Section 3211(a)(7) permits dismissal for failure to state a cause of action and requires the court to accept pleaded facts as true while deciding whether they fit a cognizable legal theory.

Cintas Corp. No. 2 v. Department of Health & Mental Hygiene of the City of N.Y. · filed 2024-06-05(a)(7)

As an initial matter, plaintiff is correct that this Court must ignore the portions of defendant’s motion that appear to rely upon documentary evidence and thereby implicate CPLR 3211(a)(1). Of course, the time for defendant to make such a motion under that subsection has long passed (see CPLR 3211[e]) as has the time to move for summary judgment; therefore, this Court can only analyze this motion as one under CPLR 3211(a)(7) (which has no time limit) and consider whether plaintiff has stated a cause of action in the complaint.

CPLR 3211 permits dismissal motions based on failure to state a cause of action, documentary evidence, and expiration of the statute of limitations, subject to the standards applied by the court.

Murphy v. Jewell · filed 2024-06-05(a)(7), (a)(1), and (a)(5)

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 a complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit [*2]within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88). ... Moreover, the documentary evidence submitted by the defendants did not utterly refute the plaintiffs' factual allegations and conclusively establish a defense as a matter of law ( see CPLR 3211[a][1]; Gold v 22 St. Felix, LLC , 219 AD3d 588, 591). ... "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[s] must establish, prima facie, that the time in which to commence the action has expired" ( Deutsche Bank Natl. Trust Co. v Natal , 217 AD3d 835, 836). ... Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the Jewell defendants.

Section 3211(a) allows a party to seek dismissal based on documentary evidence or failure to state a cause of action.

Fox v. Empire ECS LLC · filed 2024-06-06(a)

Under CPLR §3211(a), a party may move for judgment dismissing one of more causes of action asserted against him on the ground that a defense is founded upon documentary evidence or when the pleading fails to state a cause of action. See CPLR §§3211(a)(1) and (a)(7).

Section 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense as a matter of law, and section 3211(a)(7) permits dismissal when the pleaded claim fails to satisfy its required elements.

Lopez v. Martini · filed 2024-06-06(a)(1), (a)(7)

On a CPLR §321 l(a)(l) motion, "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Schmidt-Sarosi v Offices for Fertility and Reproductive Medicine, P.C., 195 AD3d 479,480 [1st Dept 2021] [internal citations omitted]) and the Operating Agreement fails to do so. ... Defendants' motion, pursuant to CPLR §3211(a)(7), to dismiss plaintiffs promissory estoppel claim against Martini is granted. ... Plaintiffs allegations that Martini promised Lopez that he would be a member of NYCT and that, in reliance on this promise, Lopez performed work for NYCT without reasonable compensation does not satisfy this standard-the complaint's reference to "reasonable" compensation concedes that plaintiff was, in fact, paid for this work (See The Laurel Hill Advisory Group, LLC v Am. Stock Transfer & Tr. Co., LLC, 2012 NY Slip Op 33461[U] [Sup Ct, NY County 2012] affd as mod sub nom. Laurel Hill Advisory Group, LLC v Am. Stock Transfer & Tr. Co., LLC, 112 AD3d 486 [1st Dept 2013] [allegations that counterclaim plaintiff left job to work for counterclaim defendant LLC based on promise that he would have a ten percent interest in that LLC failed to state a claim for promissory estoppel where his only contribution in exchange for membership interest was work for which he was compensated by the LLC with a salary]).

Under CPLR § 3211(a)(7), a court must accept the complaint's facts as true, give the plaintiff every favorable inference, and decide only whether those facts fit a cognizable legal theory.

Doe v. Roman Catholic Archdiocese of N.Y. · filed 2024-06-06(a)(7)

In addition, on a motion to dismiss brought under CPLR § 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]).

Section 3211 allows dismissal on specified grounds, including conclusive documentary defenses and an expired statute of limitations.

Bane v. Lease-n-Save Corp. · filed 2024-06-14(a)(1), (a)(5)

"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon , 84 NY2d at 88).

Section 3211(a)(1) permits dismissal based on documentary evidence only when that evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense as a matter of law, while section 3211(a)(7) requires liberal construction of the complaint and favorable inferences for the plaintiff.

B&B Maintenance Servs., Inc. v. Town of Oyster Bay · filed 2024-06-20(a)(1) and (7)

"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Qureshi v Vital Transp., Inc. , 173 AD3d 1076, 1077; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). ... On a motion to dismiss for failure to state a cause of action 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" ( Cantor v Villuci , 212 AD3d 765, 766 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 87-88). ... Here, the Supreme Court should have denied the Town's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint.

CPLR § 3211 permits dismissal for lack of capacity, a time barred claim, or failure to state a cause of action, with subsection (a)(7) requiring favorable inferences from pleaded facts.

Holloway v. City of New York · filed 2024-06-27(a)(3), (a)(5), (a)(7)

On a motion to dismiss brought under CPLR § 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994] [citations omitted]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint, while CPLR 3211(a)(7) requires liberal construction of the pleading and permits dismissal only when the alleged facts do not fit a cognizable legal theory.

Dziekonski v. Uber Tech., Inc. · filed 2024-06-28(a)(1), (a)(7)

On a motion to dismiss the 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 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703-704 [2008]). ... Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ( see Guggenheimer v Ginzburg , 43 NY2d 268, 274-275 [1977]; Fishberger v Voss , 51 AD3d 627, 628 [2008]). ... While Uber Defendants offer their own internal records as documentary evidence, this Court finds that at this stage of the litigation (pre-answer and pre-discovery), such internal records cannot serve to utterly refute the plaintiff's factual allegations asserted in the complaint as to operation, maintenance, and/or control and employment by Uber Defendants of Akramov ( see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew, Bender & Co., Inc. , 37 NY3d 169, [2021]). ... Thus, while Uber Defendants made their prima facie case in proving that Uber Defendants do not own the Akramov-driven vehicle, and the allegations in Plaintiff's complaint that Uber Defendants operated, maintained, and/or controlled Akramov's vehicle or employed Akramov may be pure speculation at the pre-answer and pre-discovery stage, Defendants' motion to dismiss Plaintiff's complaint and cross-claims with prejudice is DENIED.

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the complaint and conclusively establishes a defense as a matter of law, while CPLR 3211(a)(7) permits dismissal where the pleading cannot support the asserted cause of action.

SMG Automotive Holdings, LLC v. Kings Automotive Holdings, LLC · filed 2024-07-03(a)(1), (a)(7)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.

CPLR § 3211(a)(7) permits dismissal when a complaint fails to state a cause of action, based on the pleaded facts and applicable legal theories.

Smith v. City of New York · filed 2024-07-10(a)(7)

In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR §3211(a)(7), "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".

CPLR 3211(a)(1) requires documentary evidence that utterly refutes the petitioner's factual allegations, while CPLR 3211(a)(7) requires accepting allegations as true and affording the petitioner every favorable inference when deciding whether a cause of action exists.

Matter of Thomas v. Garden City Park Water/Fire Dist. · filed 2024-07-10(a)(1), (a)(7)

"On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference" ( Matter of Silverman v Town of Ramapo , 222 AD3d 652, 653). ... "On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, conclusively establishing a defense as a matter of law" ( id. [internal quotation marks omitted]). ... Accordingly, the Supreme Court properly denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition.

Section 3211 permits dismissal based on conclusive documentary evidence or failure to state a cause of action under the applicable standards.

Cord Meyer Dev. Co. v. Forest Hills Owners Corp. · filed 2024-07-10(a)(1) and (a)(7)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.

Section 3211 sets the grounds, standards, burdens, and timing for motions to dismiss, including dismissal for failure to state a cause of action, anti-SLAPP dismissal, stays based on another pending action, and extensions for responsive pleadings.

Zaiger LLC v. Bucher Law PLLC · filed 2024-07-01(a)(7), (g), (a)(4), and (f)

Pursuant to CPLR 321 l(a)(7), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the pleading fails to state a cause of action .... " In considering a motion pursuant to CPLR 321 l(a)(7) to dismiss a complaint for failure to state a cause of action, "the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference" (JP. Morgan Sec. Inc. v Vigilant Ins. Co. 21 NY3d 324, 334 [2013]).

CPLR 3211 requires pleadings on a motion to dismiss to be construed liberally, with alleged facts accepted as true, favorable inferences given to the nonmovant, and only whether the facts fit a cognizable legal theory determined.

Lee v. UDR, Inc. · filed 2024-07-11

“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 court] accept[s] the facts as alleged in the [pleading] as true, accord[ing the nonmovant] the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory” (id. at 87-88).

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively establishes a defense, while CPLR 3211(a)(7) tests whether the complaint states any cognizable cause of action under a liberal pleading standard.

Bondarevsky v. Shamis Chiropractic P.C. · filed 2024-07-14(a)(1), (a)(7)

Consistent with the Second Department's restrictive approach motions to dismiss under CPLR 3211 (a) (1), it has held that "[i]n order for evidence to qualify as 'documentary,' it must be unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v Palomino , 78 AD3d 996, 997 [2d Dept 2010]). ... In short, inasmuch as the evidence at the heart of Defendants' motion to dismiss under CPLR 3211 (a) (1) does not constitute "documentary evidence," such motion must be denied. ... It is indeed well-settled that on a motion to dismiss pursuant to CPLR 3211 the Court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference ( see 511 West 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 151-152 [2002]). ... In sum, Defendants' motion to dismiss under CPLR 3211 (a) (7) must be denied.

CPLR § 3211(a)(7) requires the court to accept pleaded facts as true, give the plaintiff favorable inferences, and decide whether those facts fit a cognizable legal theory.

Praeger v. Praeger · filed 2024-07-15(a)(7)

On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

A CPLR 3211(a)(7) motion based on a complete defense requires conclusive evidence of that defense when supported by evidence.

Holder v. Jacob · filed 2024-07-18(a)(7)

Where, as here, the CPLR 3211(a)(7) motion is predicated on what is asserted to be a complete defense, and that motion is supported by evidence, the evidence of the defense must be conclusive ( see Lawrence v Graubard Miller , 11 NY3d 588, 595-596 [2008]).

Section 3211 requires the court to assess whether the complaint states a viable claim based on its allegations and reasonable inferences before discovery.

Pfanner v. Anderson · filed 2024-07-25

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

Section 3211 requires the court on a motion to dismiss to accept the complaint's allegations as true and determine whether the plaintiff can succeed under any reasonable view of those facts.

Pfanner v. Anderson · filed 2024-07-25

It is well settled that upon a motion to dismiss the court Jnust determine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts (Perez v. Y & M Transportation Corporation, 219 AD3d 1449, 196 NYS3d 145 [2d bept., 2023]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively defeats the plaintiff's claims.

Mangold Mate, LLC v. Metabook, Inc. · filed 2024-07-25(a)(1)

Contracts and their terms, including merger clauses such as that in the Publishing Contract, are the kind of documentary evidence properly considered on a motion to dismiss pursuant to CPLR §3211 (a)( 1), and such a merger clause warrants granting a motion dismissing claims for breach of contract, breach of fiduciary duty and/or fraud where plaintiffs allegations are clearly precluded by the merger clause and/or barred by the parol evidence rule (see Denenberg v Schaeffer, 137 AD3d 1197, 1198 [2d Dept 2016]; SNS Bank, N. V. v Citibank, N.A., 7 AD.3d 352, 354 [1st Dept 2004]).

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

Oakshire Props., LLC v. Argus Capital Funding, LLC · filed 2024-07-26

In assessing 'a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . [W]e accept the facts as alleged in the complaint as true, accord plaintiff[s] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' " ( Pottorff v Centra Fin. Group, Inc. , 192 AD3d 1552, 1553 [4th Dept 2021]; see Bratge v Simons , 167 AD3d 1458, 1461 [4th Dept 2018]).

Section 3211 permits dismissal based on conclusive documentary evidence or when the pleaded facts do not fit a cognizable legal theory.

Fenton v. Floce Holdings, LLC · filed 2024-07-31(a)(1), (a)(7)

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Arco Acquisitions, LLC v Tiffany Plaza, LLC , 224 AD3d 798, 799 [internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 88). ... "Further, "[o]n a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( 98 Gates Ave. Corp v Bryan , 225 AD3d 647, 648 [internal quotation marks omitted]; see Paden v Brooklyn Museum of Arts , 226 AD3d 920). ... Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

CPLR 3211(a)(7) permits dismissal of claims that do not state a viable cause of action.

Incorvaia v. Incorvaia · filed 2024-07-31(a)(7)

As discussed above, the court concludes instead that the challenged claims by plaintiffs should be dismissed instead under CPLR 3211 (a) (7), because Georgia Properties does not owe plaintiffs the claimed duty and Incorvaia Sr.’s behavior is not a nuisance.

Section 3211 requires courts reviewing a motion to dismiss to liberally construe the pleading, accept alleged facts as true, give the plaintiff every favorable inference, and decide only whether the allegations fit a cognizable legal theory.

Powerflex Solar, LLC v. Solar PV Pros, LLC · filed 2024-08-01

On a motion to dismiss a complaint pursuant to CPLR 3211, [this Court] must liberally construe the pleading and accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 37 NY3d 169, 175 [2021] [internal quotation marks and citations omitted]; see Cincinnati Ins. Co. v Emerson Climate Tech., Inc. , 215 AD3d 1098, 1100 [3d Dept 2023]).

CPLR 3211(a)(1) allows dismissal when documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim.

Maranino v. Cabrini of Westchester · filed 2024-08-13(a)(1), (a)(7)

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence, the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. , 5 NY3d 582 [2005]; 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144 [2002]; Held v Kaufman , 91 NY2d 425 [1998]; Leon v Martinez , 84 NY2d 83 [1994]; Fontanetta v Doe , 73 AD3d 78 [2d Dept 2010]).

A motion under CPLR 3211(a)(4) must be made before the time to answer expires.

Digital Direct & More, Inc. v. Dialectic Distrib., LLC · filed 2024-08-14(a)(4)

The defendants' motion, which was, in effect, pursuant to CPLR 3211(a)(4), was untimely, since it was made after the time to file an answer had lapsed ( see Lema v New York Cent. Mut. Fire Ins. Co. , 112 AD3d 891, 892; Bennett v Hucke , 64 AD3d 529, 530).

CPLR 3211 permits dismissal on specified grounds, including documentary evidence that conclusively establishes a defense and another pending action involving the same parties and cause.

Dragons 516 Ltd. v. SMI USA Group LLC · filed 2024-07-30(a)(1), (a)(3), (a)(4), and (a)(5)

CPLR 3211 (a) (4) permits the court to dismiss a claim on the basis that "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." ... Therefore, CPLR 3211 (a) (4) does not apply. ... To merit dismissal, such evidence must "conclusively establish[] a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 88 [1994]).

Section 3211(e) requires a waivable defense such as the statute of limitations to be raised in a pre-answer motion or an answer; a post-answer motion to dismiss on that ground is untimely.

Matter of Sandler · filed 2024-08-23(e)

As for Klein's cross-motion to dismiss, the court determined that, because Klein had already filed an answer asserting statute of limitations as a defense, her motion was untimely under CPLR 3211 (e), which provides that waivable defenses such as the statute oflimitations be raised either in a pre-answer motion or an answer (see e.g. Smith, Gambrell & Russell, LLP v 3 W 16th Street, 220 AD3d 432 11 st Dept 20231 lholding post-answer CPLR 3211 motion to dismiss on statute of limitations grounds untimely under CPLR 3211 (e) ]).