N.Y. C.P.L.R. § 3211

CPLR 3211(a)(7) permits dismissal when the pleading fails to state a cause of action, and CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively disposes of the claim.

Rejuvenation Props. LLC v. Braito Group LLC · filed 2024-10-29(a)(7), (a)(1)

It is well-settled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR 32 l l(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and giving the plaintiff the benefit of every possible inference. ... "In a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant 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 plaintiffs claim" (Fortis Fin. Servs., LLC v Fimat Futures USA, Inc., 290 AD2d 383, 383 [1st Dept 2002] internal quotations and citations omitted).

Section 3211 permits dismissal when a pleading fails to state a cause of action and requires the pleading to be liberally construed with all alleged facts accepted as true.

Hawthorne Fin. Holdings LLC v. JDS Dev. LLC · filed 2024-10-29(a)(7)

It is well settled that when considering a motion to dismiss pursuant to CPLR § 3211, "the pleading is to be liberally construed, accepting all the facts alleged in the pleading to be true and according the plaintiff the benefit of every possible inference."

Section 3211(a)(2) governs subject matter jurisdiction challenges, while section 3211(a)(7) governs whether pleaded facts state a legally sufficient cause of action under a favorable inference standard.

Fernsmith v. City of New York · filed 2024-10-29(a)(2), (a)(7)

On a motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7), courts must afford the pleadings a liberal construction, accepting the facts as alleged in the complaint as true and giving the plaintiff the benefit of every favorable inference (Leon v. Martinez, 84 NY2d 83, 87 [1994]; JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). ... A motion to dismiss under CPLR § 321 l(a)(2) for lack of subject matter jurisdiction, on the other hand, must establish that the court lacks the legal authority to adjudicate the claim at issue.

Section 3211(a)(5) permits dismissal when a claim is barred by a prior judgment, and section 3211(a)(7) permits dismissal when the pleading fails to state a cause of action.

Eighmey v. Conigliaro · filed 2024-11-12(a)(5), (a)(7)

The Town now moves to dismiss pursuant to CPLR 3211(a)(5) and (7). ... In addition to all of plaintiff's claims against the Town defendants being barred by res judicata, plaintiffs' amended complaint fails to state a viable cause of action for negligence. ... Wherefore, it is ORDERED that the motion is granted and that plaintiffs' claims against the Town of Woodstock, the Town Board of the Town of Woodstock and Bill McKenna are dismissed.

A CPLR 3211(a)(1) motion may be granted when documentary evidence conclusively establishes a defense as a matter of law.

35 Circuit Rd. LLC v. Nikocevic · filed 2024-11-12(a)(1)

A CPLR 3211 (a) (1) motion to dismiss o·n the ground that the action is barred by documentary evidence may be granted only where the documentary evidence conclusively establishes a defense to the asserted claims as a matter of law (id.; see also, Roth v Goldman, 254 AD2d 405 [2d Dept 1998]).

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense, while CPLR 3211(a)(7) requires accepting alleged facts as true and asks whether they fit a cognizable legal theory.

JLO Dev. Corp. v. Amalgamated Bank · filed 2024-11-13(a)(1) and (a)(7)

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' ( Yan Ping Xu v Van Zwienen , 212 AD3d 872, 874, quoting Goshen v Mutual Life Ins. Co. of N.Y. , [*2]98 NY2d 314, 326; see Leon v Martinez , 84 NY2d 83, 88). 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 100, 106). On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), a pleading is 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 ( see Leon v Martinez , 84 NY2d at 87-88; Caravello v One Mgt. Group, LLC , 131 AD3d 1191).

Section 3211(e) permits a motion under subdivision (a)(7) after issue has been joined.

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

Under CPLR § 3211(e), a motion to dismiss under subdivision (a)(7) may be made at any time, including after issue has been joined.

A defendant in default cannot obtain dismissal under CPLR 3211(a)(5) as time-barred without vacating the default.

Wells Fargo Bank, N.A. v. Laporte · filed 2025-02-19(a)(5)

The Supreme Court also properly denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. A defendant in default is not entitled to affirmative relief of a nonjurisdictional nature absent vacatur of his or her default ( see Wilmington Trust, N.A. v Ashe , 189 AD3d 1130, 1132; Bank of N.Y. Mellon v Lawson , 176 AD3d 1155, 1157). Here, the defendant did not seek to vacate his default in failing to appear or answer the complaint ( see Bank of N.Y. Mellon v Lawson , 176 AD3d at 1157).

A motion under CPLR 3211(a)(8) to dismiss claims against allegedly nonjural entities may be denied as premature.

Pertardi v. General Conference of the United Methodist Church · filed 2025-02-20(a)(8)

For the reasons stated in Fields v General Conference of The United Methodist Church (Appeal No. 3169, _AD3d _[1st Dept 2024]), decided simultaneously with this decision, we find that Supreme Court properly denied, as premature, appellants' motion under CPLR 3211(a)(8) to dismiss the complaint as against them.

Section 3211(e) requires a motion to dismiss to be made within the time to answer or appear; a later motion is untimely.

Estate of Wilson v. Northern Manhattan Nursing Home, Inc. · filed 2025-06-09(e)

A motion to dismiss pursuant to CPLR 3211 extends the time to serve a responsive pleading only if it is made within the time statutorily prescribed to answer or appear; it does not operate to cure a party’s default (see Wenz v Smith, 100 AD2d 585, 586 [2d Dept 1984]; Danahy v Meese, 84 AD2d 670 [4th Dept 1981]; YM Antiques, Inc. v Monr51, LLC, 2011 NY Slip Op 33800[U], *11-12, 2011 NY Misc LEXIS 6859, *15-17 [Sup Ct, N.Y. County, Aug. 16, 2011]).

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

Bank of N.Y. Mellon v. Tedeschi · filed 2025-07-02(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 [*2]of standing as a matter of law" ( Capital One, N.A. v Ludden , 192 AD3d 752, 753 [internal quotation marks omitted]). Here, the defendants failed to meet that burden.

CPLR 3211(e) permits a motion to dismiss for lack of subject matter jurisdiction at any time, even after an answer.

Gould v. State of New York · filed 2025-07-11(e)

Among other things, that provision permits motions to dismiss on the ground of lack of subject matter jurisdiction to be made at any time, even after answering ( see CPLR 3211 [e]; Carpenter v Plattsburgh Wholesale Homes, Inc. , 83 AD3d 1175, 1177 n 1 [3d Dept 2011]; see also Financial Indus. Regulatory Auth., Inc. v Fiero , 10 NY3d 12, 17 [2008] [holding that lack of subject matter jurisdiction defense may be raised at any time in the litigation]).

Once issue is joined, a motion under CPLR 3211(e) is not permitted.

Padovani v. New York State Energy Research & Dev. Auth. · filed 2025-09-22(e)

Prior to filing the motion issue was joined. Once joined, a motion pursuant to CPLR 3211 (e) is not permitted.

A motion to dismiss under CPLR 3211(a)(5) must be filed before the answer; a defense pleaded in the answer may be decided at trial or on summary judgment.

1669 Union St LLC v. NY Tower Capital LLC · filed 2026-01-26(a)(5)

A motion to dismiss on the grounds set forth in CPLR 3211(a)(5) is required to be filed pre-answer or else it should be pled in the answer and adjudicated at trial or summary judgment.

Section 3211 permits dismissal for failure to state a cause of action, conclusively refuting documentary evidence, or a defense that is not stated or has no merit.

Janover, LLC v. Smith · filed 2026-01-28(a)(7), (a)(1), (b)

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is afforded a liberal construction and the court must give the party the benefit of every possible favorable inference, accept the facts alleged in the pleading as true, and determine only whether the facts as alleged fit within any cognizable legal theory" ... "A motion to dismiss a [counterclaim] pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the [plaintiff] utterly refutes the factual allegations of the [counterclaim] and conclusively establishes a defense to the [counterclaim] as a matter of law" ... "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit"

A motion to dismiss for lack of capacity under CPLR 3211(a)(3) is untimely after service of an answer; a defendant who preserved the defense in its answer may raise it on summary judgment.

Rich v. Lo · filed 2026-02-20(a)(3)

In the first instance, that branch of the Beth Israel defendants’ motion which was pursuant to CPLR 3211(a)(3) was untimely since it was made subsequent to their service of an answer; in connection with the affirmative defense of lack of capacity, as well as several other defenses identified in CPLR 3211(a), if a defendant has preserved the defense by raising it in its answer, it may move pursuant to CPLR 3212 for summary judgment on that ground subsequent to serving the answer, but a CPLR 3211(a)(3) motion will not lie where it was made after service of the answer (see Molina v Mount Sinai Morningside Hosp., 244 AD3d 489, 489 [1st Dept 2025] [applying rule to CPLR 3211(a)(5) motion]; Estate of Wilson v Northern Manhattan Nursing Home, Inc., 2025 NY Slip Op 34983[U], *3, 2025 NY Misc LEXIS 10426 *4 [Sup Ct, N.Y. County, Dec. 23, 2025] [Kelley, J.]; Bowman v Andrews, 2025 NY Slip Op 34920[U], *3, 2025 NY Misc LEXIS 10487, *3-5 [Sup Ct, N.Y. County, Dec. 16, 2025] [Kelley, J.]; Lusitano Enters., Inc. v Horton Bros., Inc., 2018 NY Slip Op 32011[U], *2-3, 2018 NY Misc LEXIS 3587, *4 [Sup Ct, Suffolk County, Aug. 14, 2018]; see also Castro v Fraser, 2022 NY Slip Op 30903[U], *5, 2022 NY Misc LEXIS 1368, *7 [Sup Ct, N.Y. County, Mar. 15, 2022] [Kelley, J.]; Higgins v Goyer, 2018 NY Slip Op 33520[U], *2, 2018 NY Misc LEXIS 9607, *3 [Sup Ct, Rensselaer County, Nov. 1, 2018]).

Section 3211(e) requires a motion to dismiss to be made before the responsive pleading is due.

Lugo v. Excel Conveyor LLC · filed 2026-06-09(e)

Golden Krust's motion to dismiss was procedurally defective since it was not "made before service of the responsive pleading was required" (CPLR 3211 [e]).

Section 3211(b) permits a motion challenging the sufficiency of a defense before or during trial.

Hansen v. City of New York · filed 1964-09-09(b)

An objection has been raised with regards to the timeliness of the instant motion to dismiss the defense. It seems, however, to he the general consensus of opinion that under “ rule 3211 of the Civil Practice Law and Rules, a motion challenging the sufficiency of defenses may be made at any time prior to, or even upon the trial. (See 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3211.47; McKinney’s Book 7B, CPLR 3211, Note, p. 326.) ” (Sadif, S. A. v. Burnham & Co., 20 A D 2d 777.) ... Motion granted.

CPLR 3211(b) permits a motion to dismiss defenses; without a reply to the counterclaims, the court found it technically inapplicable to the subclass’s refund motion.

City of Rochester v. Chiarella · filed 1983-10-27(b)

Under CPLR 3211 (subd [b]) a party may move to dismiss “one or more defenses”. Pursuant to CPLR 3212 (subd [a]) a motion for summary judgment can be made “after issue has been joined.” Technically, therefore, in the absence of a reply to the counterclaims, neither section seems applicable, but as noted above, this does not form the sole basis for the holding herein.

A court must decide whether to vacate a defendant’s default before reaching the merits of that defendant’s CPLR 3211(a) motion to dismiss.

Wells Fargo Bank, NA v. Tobing · filed 2019-08-28(a)

It was procedurally improper for the court to reach the merits of that branch of the motion which was to dismiss based upon lack of standing without first determining whether the defendant's default in appearing or answering the complaint should be vacated, and if so, whether the defendant should be allowed an opportunity to serve an answer.

On a motion to dismiss under CPLR 3211(a)(7), the court gives the plaintiff every possible favorable inference when assessing the complaint.

Rabinowitz v. Clarke · filed 2024-09-26(a)(7)

Affording plaintiff the benefit of every possible favorable inference, the complaint alleges that, on October 5, 2016, plaintiff gave defendant $60,000 in furtherance of a real estate investment that defendant led plaintiff to believe was to be a valid transaction for the parties' mutual benefit.

CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the allegations or establishes a defense, while CPLR 3211(a)(7) requires allegations to be accepted as true on a motion to dismiss.

Celentano v. Boo Realty, LLC · filed 2018-04-26(a)(1) and (a)(7)

The complaint states a cognizable cause of action against Jo Lu, and its allegations must be accepted as true on a motion to dismiss ( see CPLR 3211[a][7]; Rovello v Orofino Realty Co. , 40 NY2d 633 [1976]). The documentary evidence submitted by defendants in support of their motion to dismiss neither "utterly refutes plaintiff's factual allegations," nor "conclusively establishes a defense to the asserted claims as a matter of law" ( Mill Fin., LLC v Gillett , 122 AD3d 98, 103 [1st Dept 2014] [internal quotation marks omitted]; CPLR 3211[a][1]).

CPLR 3211(a)(7) requires courts to accept the complaint's facts as true and determine whether they fit a cognizable legal theory, while CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively refutes the claims.

Nero v. Fiore · filed 2018-10-10(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must " accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" ( Nonnon v City of New York , 9 NY3d 825, 827, quoting Leon v Martinez , 84 NY2d 83, 87). ... A motion to dismiss pursuant to CPLR 3211(a)(1) should be granted only where the documentary evidence that forms the basis of the defense utterly refutes the plaintiff's factual allegations, and conclusively disposes of the plaintiff's claims as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y ., 98 NY2d 314, 326; Held v Kaufman , 91 NY2d 425, 430-431).

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

Mehrhof v. Monroe-Woodbury Cent. Sch. Dist. · filed 2019-01-09(a)(1), (a)(7)

In considering a motion to dismiss a complaint pursuant to 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, 88; Meyer v North Shore-Long Is. Jewish Health Sys., Inc. , 137 AD3d 880, 880-881; Sokol v Leader , 74 AD3d 1180, 1181). ... "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" ( Golia v Vieira , 162 AD3d 865, 866 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314; Leon v Martinez , 84 NY2d at 83; M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner , 126 AD3d 857, 858; Gould v Decolator , 121 AD3d 845, 847). ... We agree with the Supreme Court's determination granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the breach of contract cause of action.

CPLR 3211(a)(7) requires the court to assume the truth of the allegations and view the complaint's facts favorably when deciding whether it states a valid claim; CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the allegations.

Cassidy v. Greater N.Y. Auto. Dealers Assn., Inc. · filed 2019-06-18(a)(7) and (a)(1)

Viewing the facts of the third-party complaint in the light most favorable to third-party plaintiff and assuming the truth of the allegations for the purpose of CPLR 3211(a)(7), we find that it states valid claims for both contractual and common law indemnification ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326-327 [2002]; Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc. , 115 AD3d 128, 134-135 [1st Dept 2014]). Nor is dismissal warranted under CPLR 3211(a)(1). The documentary evidence does not utterly refute the allegations in the third-party complaint ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Lopez v Fenn , 90 AD3d 569, 570 [1st Dept 2011]).

CPLR 3211(a) governs motions to dismiss, and its standard does not apply to a post-answer motion for summary judgment.

Best v. Guthrie Med. Group, P.C. · filed 2019-08-22(a)

As an initial matter, we reject plaintiff's contention that the court should have decided the motion under the standard applicable to motions brought under CPLR 3211 (a).

CPLR 3211(a)(1) and (a)(7) permit dismissal based on documentary evidence or failure to state a cause of action, respectively.

HealthNow N.Y., Inc. v. David Home Bldrs., Inc. · filed 2019-10-04(a)(1) and (a)(7)

We thus conclude that dismissal of that cause of action was not warranted under CPLR 3211 (a) (7). We further conclude that dismissal under CPLR 3211 (a) (1) was not warranted.

On a motion to dismiss under CPLR 3211(a)(7), the complaint must be liberally construed.

684 E. 222nd Realty Co., LLC v. Sheehan · filed 2020-07-22(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction ( see CPLR 3026).

On a motion under CPLR 3211(a)(7), the court construes the complaint liberally, accepts its alleged facts as true, gives the plaintiff every favorable inference, and asks whether those facts fit a cognizable legal theory.

Denisco v. Uysal · filed 2021-06-30(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, 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).

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

Moskowitz v. Masliansky · filed 2021-10-06(a)(7)

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept all 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; Sokol v Leader , 74 AD3d 1180, 1181).

Section 3211 permits dismissal for failure to state a cause of action or when documentary evidence conclusively resolves factual issues and disposes of the claim.

Rigwan v. Neus · filed 2022-05-25(a)(1), (a)(7)

In considering a motion to dismiss a complaint 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). 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 [*2]any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg , 43 NY2d 268, 275; see 255 Butler Assoc., LLC v 255 Butler, LLC , 173 AD3d 655, 656). 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; 255 Butler Assoc., LLC v 255 Butler, LLC , 173 AD3d at 656).

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

Mid City Elec. Corp. v. Peckar & Abramson · filed 2023-03-01(a)(7)

"In determining a motion to dismiss a complaint 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" ( Rudovic v Law Off. of Timothy A. Green , 200 AD3d 814, 815 [internal quotation marks omitted]).

On a motion to dismiss under CPLR 3211(a)(7), a court accepts the complaint’s allegations as true, draws favorable inferences for the plaintiff, and asks whether the alleged facts fit a cognizable legal theory.

USCHAG Corp. v. Flagstar Bank, FSB · filed 2023-10-11(a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, 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; SV Vernon 43, LLC v Malik , 138 AD3d 730, 731).

CPLR 3211(a)(7) requires courts to accept pleaded facts as true and determine whether they fit a cognizable legal theory, while CPLR 3211(a)(1) permits dismissal when documentary evidence conclusively disposes of the claim.

Pearl St. Parking Assoc. LLC v. City of Buffalo · filed 2024-05-03(a)(1) and (a)(7)

On a motion to dismiss pursuant to CPLR 3211 (a) (7), we must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any [*2]cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]). Further, "[a] motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiffs'] claim[s]" ( Baumann Realtors, Inc. v First Columbia Century-30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014] [internal quotation marks omitted]).

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

Khan v. Arena Serv. Co., LLC · filed 2024-06-18(a)(1), (a)(7)

Under 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 3211 (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]). ... Dismissal of a claim pursuant to CPLR 321 l(a)(l) "is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]).

On a motion to dismiss under § 3211(a)(7), the court treats pleaded facts as true, draws favorable inferences, and asks whether they fit a cognizable legal theory.

Ogieva v. Drumgoole · filed 2025-03-12(a)(7)

When considering a motion under CPLR § 3211, the court must afford the pleadings a liberal construction. The court must deem 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.

On a motion to dismiss as time-barred, the defendant must first show that the time to sue expired; the plaintiff must then raise a factual question about an exception, tolling, or timely commencement.

Angel v. Strulovich · filed 2025-07-16(a)(5)

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 that the time in which to sue has expired ( see Sibrian v 244 Madison Realty Corp. , 210 AD3d 1029, 1031; Franqui v Korol , 154 AD3d 742, 743; Murray v Charap , 150 AD3d 752). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see Sibrian v 244 Madison Realty Corp. , 210 AD3d at 1031; Franqui v Korol , 154 AD3d at 743; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780, 781).

On a motion to dismiss a claim as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

P.A. v. Poly Prep Country Day Sch. · filed 2025-04-30(a)(5)

"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" ( Rubin v Poly Prep Country Day Sch. , 227 AD3d 741, 742 [internal quotation marks omitted]; see Schearer v Fitzgerald , 217 AD3d 980, 981). Here, Poly Prep, which argued that the CVA violates the Due Process Clause of the New York Constitution, failed to meet its burden.

On a motion to dismiss under section 3211(a)(5), the defendant must make a prima facie showing that the action is time-barred.

DiCenzo v. Mone · filed 2025-04-24(a)(5)

"A motion to dismiss a complaint on statute of limitations grounds pursuant to CPLR 3211 (a) (5) requires the defendant to establish, prima facie, that the action was time-barred" ( Sloane v Power Auth. of the State of N.Y. , 214 AD3d 1150, 1151 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 902 [2023]).

On a motion to dismiss as time-barred under CPLR 3211 (a) (5), the defendant must first establish that the limitations period expired; the plaintiff must then present facts showing that it did not expire, was tolled, or is subject to an exception.

Paul v. Lyons · filed 2024-11-15(a)(5)

"On a motion to dismiss pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the defendant has the initial burden of establishing that the limitations period has expired" ( Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1561-1562 [4th Dept 2021]). Once a defendant meets that initial burden, the burden shifts "to plaintiff to aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( id . at 1562 [internal quotation marks omitted]). Here, defendant met her initial burden on the motion of establishing that the limitations period had expired.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to commence the action has expired.

GSR Mtge. Loan Trust v. Epstein · filed 2022-05-18(a)(5)

Therefore, the defendants failed to sustain their initial burden of demonstrating, prima facie, that the time within which to commence the instant action expired ( see U.S. Bank, N.A. v Gordon , 158 AD3d at 836). Accordingly, the Supreme Court should have denied the separate motions of the defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

A defendant seeking dismissal under CPLR 3211(a)(5) as time barred must first show that the time to commence the action has expired.

U.S. Bank N.A. v. Vitolo · filed 2020-04-29(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that [*2]the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197).

CPLR 3211(a)(5) requires a defendant seeking dismissal as time-barred to make a prima facie showing that the limitations period has expired.

U.S. Bank N.A. v. Gordon · filed 2019-10-16(a)(5)

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see U.S. Bank N.A. v Greenberg , 170 AD3d 1237; Campone v Panos , 142 AD3d 1126, 1127; Stewart v GDC Tower at Greystone , 138 AD3d 729, 729). ... Accordingly, we agree with the Supreme Court's determination denying the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

Section 3211(a)(5) requires a defendant seeking dismissal on statute of limitations grounds to make a prima facie showing that the time to sue has expired.

O'Brien v. County of Nassau · filed 2018-08-15(a)(5)

" A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired'" ( Benjamin v Keyspan Corp ., 104 AD3d 891, 892, quoting LaRocca v DeRicco , 39 AD3d 486, 486-487).

CPLR 3211(a)(5) permits dismissal when a claim is barred by the statute of limitations, and the defendant bears the initial burden of establishing that bar.

Wilmington Sav. Fund Socy., FSB v. Gustafson · filed 2018-04-27(a)(5)

In moving to dismiss the complaint against them, defendants contended that the action is barred by the six-year statute of limitations ( see CPLR 213 [4]; see also CPLR 3211 [a] [5]), and Supreme Court granted the motion. We reverse. We agree with plaintiff that defendants failed to meet their initial burden of establishing that the action is time-barred .

CPLR 3211(a)(5) permits dismissal on statute of limitations grounds and places the initial burden on the movant to show prima facie that the time to sue has expired, including when the claim accrued.

Matter of Asch · filed 2018-08-22(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the movant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In this regard, the movant must establish, inter alia, when the cause of action accrued ( see Rodeo Family Enters., LLC v Matte , 99 AD3d 781, 783-784; Swift v New York Med. Coll. , 25 AD3d 686, 687; Gravel v Cicola , 297 AD2d 620, 620-621).

A defendant moving under CPLR 3211(a)(5) bears the initial burden of proving that the statute of limitations has expired.

Plaza Invs. v. Capital One Fin. Corp. · filed 2018-10-10(a)(5)

A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Murray v Charap , 150 AD3d 752, 753; Wei Wei v Westside Women's Med. Pavilion, P.C. , 115 AD3d 662, 663; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780, 781; Texeria v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405).

CPLR 3211(a)(5) permits dismissal when a claim is barred by the statute of limitations, with the defendant initially required to show that the filing period expired.

Osborn v. DeChiara · filed 2018-10-31(a)(5)

A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired ( see CPLR 214-a; Gomez v Katz , 61 AD3d 108, 113; Kaufmann v Fulop , 47 AD3d 682, 683). The burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations or whether the continuous treatment doctrine applies to toll the statute of limitations ( see Schwelnus v Urological Assoc. of L.I., P.C. , 94 AD3d 971, 973).

CPLR 3211(a)(5) requires the court to accept the complaint's alleged facts as true and give the plaintiff every favorable inference when deciding a motion to dismiss.

JP Morgan Chase Bank, N.A. v. Mbanefo · filed 2018-11-14(a)(5)

"In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference"

Section 3211 places the initial burden on a defendant moving to dismiss a claim as time barred to show that the limitations period expired.

People v. Trump · filed 2018-11-21(a)(5)

In moving to dismiss an action as barred by the statute of limitations, a moving defendant bears the initial burden of demonstrating that the time within which to commence the cause of action has expired. Norddeutsche Landesbank Girozentrale v. Tilton, 149 AD3d 152 (1st Dept. 2017). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether plaintiff commenced the action within the limitations period. See Wilson v Southampton Urgent Med. Care, P.C., 112 AD3d 499 (1st Dept. 2013).

On a motion to dismiss based on the statute of limitations, the defendant initially must show prima facie that the time to sue has expired, after which the burden shifts to the plaintiff.

Bank of N.Y. Mellon v. Craig · filed 2019-02-06(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA , 117 AD3d 978, 979).

On a motion under CPLR 3211(a)(5), the defendant must first make a prima facie showing that the time to sue has expired.

Sclafani v. Kahn · filed 2019-02-13(a)(5)

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)(5) permits dismissal when the statute of limitations has expired, subject to the movant's prima facie burden.

Goodman v. Skanska USA Civ., Inc. · filed 2019-02-27(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Ross v Jamaica Hosp. Med. Ctr. , 122 AD3d 607, 607; Landow v Snow Becker Krauss, P.C. , 111 AD3d 795, 796; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL—CIO , 91 AD3d 768, 768-769).

Under CPLR 3211(a)(5), a defendant seeking dismissal as time-barred must first establish prima facie that the limitations period expired, after which the plaintiff must show an applicable exception.

Carrington v. New York State Off. for People With Dev. Disabilities · filed 2019-03-15(a)(5)

We reject plaintiff's contention that Supreme Court erred in granting defendant's pre-answer motion pursuant to CPLR 3211 (a) (5) and dismissing the complaint on the ground that it was time-barred by CPLR 214 (2). ... Inasmuch as defendant met its burden, the burden shifted to plaintiff to establish that an exception to the limitations period applies ( see Siegel v Wank , 183 AD2d 158, 159 [3d Dept 1992]), and we conclude that plaintiff failed to meet that burden.

Section 3211(a)(5) requires a defendant to show prima facie that the limitations period expired, after which the plaintiff must show tolling, inapplicability, or timely commencement.

U.S. Bank N.A. v. Greenberg · filed 2019-03-27(a)(5)

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see Campone v Panos , 142 AD3d 1126, 1127; Stewart v GDC Tower at Greystone , 138 AD3d 729). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( U.S. Bank N.A. v Gordon , 158 AD3d at 835 [internal quotation marks omitted]; see Stewart v GDC Tower at Greystone , 138 AD3d at 730; Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

CPLR 3211(a)(5) requires a defendant challenging a claim as time-barred to first show prima facie that the time to sue has expired.

HSBC Bank USA, N.A. v. Gold · filed 2019-04-17(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground [*2]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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see U.S. Bank N.A. v Joseph , 159 AD3d 968, 969).

CPLR 3211(a)(5) places the initial burden on a defendant seeking dismissal on statute of limitations grounds to establish prima facie that the time to sue has expired.

Hudson City Sav. Bank, FSB v. Schoenfeld · filed 2019-05-01(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835).

Section 3211(a)(5) permits dismissal of an untimely claim, and the defendant must establish untimeliness on the motion.

Mullin v. WL Ross & Co. LLC · filed 2019-06-18(a)(5)

For purposes of a motion to dismiss under CPLR 3211(a)(5), defendants failed to establish that the claims for breach of contract against defendant Ross CG Associates, L.P. (Ross CGA) are untimely to the extent they are based on allegations that Ross CGA failed to make payments to plaintiff to which he was allegedly entitled as a partner on or after December 30, 2010, within the applicable six-year limitation period before the commencement of this action in December 2016 ( see CPLR 213).

CPLR 3211(a)(5) places the initial burden on a defendant moving to dismiss a complaint as time-barred, after which the burden shifts to the nonmoving party to raise a fact question about an exception, tolling, or timely commencement.

Lewis v. KMT Group, Inc. · filed 2019-06-26(a)(5)

A defendant who moves pursuant to CPLR 3211(a)(5) to dismiss a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Murray v Charap , 150 AD3d 752; Wei Wei v Westside Women's Med. Pavilion, P.C. , 115 AD3d 662; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780; Texeria v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d at 781; Baptiste v Harding-Marin , 88 AD3d 752; Williams v New York City Health & Hosps. Corp. , 84 AD3d 1358).

On a motion under CPLR 3211(a)(5) based on an expired statute of limitations, the defendant must first make a prima facie showing that the filing period expired, after which the plaintiff must raise a factual question concerning tolling, applicability, or timely commencement.

Edem v. Wondemagegehu · filed 2019-08-07(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time within which to commence the action has expired ( see Goodman v Skanska USA Civ., Inc. , 169 AD3d 1010, 1011; Coleman v Wells Fargo & Co. , 125 AD3d 716). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period ( see Coleman v Wells Fargo & Co. , 125 AD3d at 716; Baptiste v Harding-Marin , 88 AD3d 752, 753).

CPLR 3211(a)(5) places the initial burden on a defendant to show prima facie that the claim is time-barred.

Pennymac Corp. v. McGlade · filed 2019-10-16(a)(5)

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired"

On a motion to dismiss a fraud claim as time-barred, a defendant’s showing that more than six years elapsed shifts the burden to the plaintiff to show that the two-year discovery exception applies.

Beacon Estates, LLC v. Ingrassia · filed 2019-11-08(a)(5)

Here, defendants established that the action was commenced more than six years from the dates of the alleged acts of fraud, thus "shifting the burden to plaintiffs to show that the two-year discovery exception applies" (Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180 [4th Dept 2013], lv denied 21 NY3d 858 [2013]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant bears the initial burden of showing that the time to sue has expired.

Matter of Horowitz v. Foster · filed 2020-02-13(a)(5)

Here, NYIT failed to meet its initial burden of establishing that the time in which to commence the proceeding had expired ( see id. at 851). Accordingly, the Supreme Court should not have granted that branch of NYIT's cross motion which was pursuant to CPLR 3211(a)(5) to dismiss the petition as time-barred.

On a motion to dismiss under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the action is time-barred.

Trust v. Barua · filed 2020-06-03(a)(5)

Here, since Chase accelerated the loan balance by commencing the first action on November 6, 2009, and the second action was not commenced until November 10, 2015, the defendant met his initial burden of demonstrating, prima facie, that the second action is time-barred by operation of CPLR 213(4) and 3211(a)(5) by four days ( see HSBC Bank USA, N.A. v Gold , 171 AD3d at 1030; Bank of N.Y. Mellon v Dieudonne , 171 AD3d 34, 36; U.S. Bank N.A. v Joseph, 159 AD3d 968, 969; U.S. Bank N.A. v Gordon , 158 AD3d 832, 834; Campone v Panos , 142 AD3d 1126, 1127; Stewart v GDC Tower at Greystone , 138 AD3d 729, 730).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must show that the time to sue has expired.

U.S. Bank Trust, N.A. v. Miele · filed 2020-08-05(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must show, prima facie, that the time to commence the action has expired.

Wright v. Southampton Hosp. · filed 2020-10-28(a)(5)

A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired ( see CPLR 214-a; Mello v Long Is. Vitreo-Retinal Consultant, P.C. , 172 AD3d at 850; Gomez v Katz , 61 AD3d at 113).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must make a prima facie showing that the limitations period expired; the plaintiff must then raise a question of fact.

U.S. Bank N.A. v. Davids · filed 2020-11-04(a)(5)

Here, the defendant established that the six-year statute of limitations began to run on the entire debt on September 10, 2007, when the plaintiff commenced the prior foreclosure action and elected in the complaint to call due the entire amount secured by the mortgage. Since the plaintiff did not commence this action until July 8, 2016, the defendant sustained his prima facie burden on his motion ( see Freedom Mtge. Corp. v Engel , 163 AD3d at 632-633). In opposition, the plaintiff failed to raise a question of fact.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a factual issue about tolling or another reason the period does not apply.

Gurecki v. Gurecki · filed 2020-12-03(a)(5)

Turning to the merits, "[t]o dismiss [an 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" ( Krog Corp. v Vanner Group, Inc. , 158 AD3d 914, 915 [2018] [internal quotation marks and citations omitted]). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable" ( Elia v Perla , 150 AD3d 962, 964 [2017] [internal quotation marks and citations omitted]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

First Am. Tit. Ins. Co. v. Holohan · filed 2020-12-16(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Ditech Fin., LLC v Naidu , 175 AD3d 1387, 1388, lv granted 34 NY3d 910).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the time to commence the action has expired.

Cadlerock Joint Venture, L.P. v. Trombley · filed 2020-12-16(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time [*2]in which to commence the action has expired ( see Ross v Jamaica Hosp. Med. Ctr. , 122 AD3d 607, 608; Landow v Snow Becker Krauss, P.C. , 111 AD3d 795, 796; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO , 91 AD3d 768, 768-769).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a question of fact about tolling or another reason the limit does not apply.

Artup v. Simeone · filed 2020-12-16(a)(5)

A defendant who moves pursuant to CPLR 3211(a)(5) to dismiss a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Lewis v KMT Group, Inc. , 173 AD3d 1153, 1154; Witty v 1725 Fifth Ave. Corp. , 170 AD3d 781, 783; Plaza Invs. v Capital One Fin. Corp. , 165 AD3d 853, 854). The burden then shifts to the nonmoving party to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable ( see Benjamin v Keyspan Corp. , 104 AD3d 891, 892; Shalik v Hewlett Assoc., L.P. , 93 AD3d 777, 778; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc. , 90 AD3d 821, 822).

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

Deutsche Bank Natl. Trust Co. v. Blank · filed 2020-12-30(a)(5)

"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" ( HSBC Bank USA, N.A. v Gold , 171 AD3d 1029, 1030 [internal quotation marks omitted]). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( id. at 1030 [internal quotation marks omitted]).

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

Nationstar Mtge., LLC v. Weisz · filed 2021-06-23(a)(5)

Where, as here, the defendants satisfy the initial burden of proof on a motion, in effect, pursuant to CPLR 3211(a)(5), "the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

A movant seeking dismissal under CPLR 3211(a)(5) as time-barred must make a prima facie showing that the claim is untimely.

U.S. Bank N.A. v. Davids · filed 2021-09-15(a)(5)

The defendant's evidence that the debt was accelerated by commencement of the prior action, which was later discontinued voluntarily, failed to demonstrate, prima facie, that an action to foreclose the subject mortgage was time-barred ( see id. ). Accordingly, we reverse the judgment insofar as appealed from, reinstate the first cause of action, and deny those branches of the defendant's motion which were pursuant to CPLR 3211(a)(5) to dismiss the first cause of action as time-barred and to cancel the notice of pendency filed against the subject property.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a factual question about timeliness or a toll.

St. Rose v. Thompson · filed 2022-01-12(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a cause of action on the ground that it is barred by the statute of limitations, the moving defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired ( see Avery v WJM Dev. Corp. , 197 AD3d 1141). If that initial burden is satisfied, the plaintiff must then raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period ( see Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must establish when the plaintiff's causes of action accrued.

Witecki v. Saratoga Lakeside Acres Assn., Inc. · filed 2022-01-13(a)(5)

"In moving to dismiss [a] complaint pursuant to CPLR 3211 (a) (5), [the] defendant [has] the initial burden to establish, prima facie, that the action was time-barred, and, to do so, [is] required to establish when [the] plaintiff's causes of action accrued" ( Northeastern Indus. Park, Inc. v Hoosick Val. Contrs., Inc. , 106 AD3d 1182, 1183 [2013] [citations omitted]; see Krog Corp. v Vanner Group, Inc. , 158 AD3d 914, 915-916 [2018]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the time to commence the action has expired.

Star Auto Sales of Queens, LLC v. Filardo · filed 2022-03-09(a)(5)

"In moving to dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a moving defendant must establish, prima facie, that the time within which to commence the action has expired" ( Franklin v Hafftka , 140 AD3d 922, 924; see Farro v Schochet , 190 AD3d 698, 698-699).

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

U.S. Bank N..A. v. Nail · filed 2022-03-23(a)(5)

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

A defendant moving to dismiss under CPLR 3211(a)(5) as time-barred must initially establish that the plaintiff’s time to sue has expired.

U.S. Bank N.A. v. Cox · filed 2022-03-30(a)(5)

Initially, the Supreme Court correctly determined that the defendant failed to meet her initial burden of establishing, prima facie, that the plaintiff's time in which to sue had expired ( see CPLR 3211[a][5]; HSBC Bank USA, N.A. v Gold , 171 AD3d 1029, 1030).

On a CPLR 3211(a)(5) motion to dismiss as time-barred, the defendant initially must show prima facie that the time to sue has expired.

Bank of N.Y. Mellon v. Muriqi · filed 2022-05-04(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Hudson City Sav. Bank, FSB v Schoenfeld , 172 AD3d 692, 693).

Under CPLR 3211(a)(5), the defendant must first make a prima facie showing that the time to sue has expired; the burden then shifts to the plaintiff to show tolling or inapplicability.

RTT Holdings, LLC v. Nacht · filed 2022-06-15(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see U.S. Bank N.A. v Derissaint , 193 AD3d 790, 791). If such prima facie showing is made, the burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable ( see Klein v Deutsch , 193 AD3d 707, 709).

On a motion to dismiss a claim as time-barred, the movant has the initial burden of establishing that the statute of limitations bars the claim.

Matter of Reich · filed 2022-07-08(a)(5)

Respondent had the initial burden of establishing that petitioners' claims were barred by the statute of limitations ( see SCPA 102; CPLR 3211 [a] [5]; see also U.S. Bank N.A. v Brown , 186 AD3d 1038, 1039 [4th Dept 2020]).

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

Weinstein v. Gewirtz · filed 2022-08-17(a)(5)

"In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable"

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

Marcotrigiano v. Dental Specialty Assoc., P.C. · filed 2022-10-19(a)(5)

Here, the administrator met his prima facie burden by submitting, inter alia, a copy of the amended complaint, which was filed more than four years after the course of treatment allegedly ended in November 2015. Consequently, the burden shifted to the plaintiff to present evidence raising a question of fact as to whether the relation-back doctrine applied ( see Buran v Coupal , 87 NY2d 173, 178; Alvarado v Beth Israel Med. Ctr. , 60 AD3d 981, 982).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must show that the time to sue has expired.

Kreutzberg v. Law Offs. of John Riconda, P.C. · filed 2022-11-16(a)(5)

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 ( see Van Der Velde v New York Prop. Underwriting Assn. , 205 AD3d 970, 971; Joseph v Fensterman , 204 AD3d 766, 769; Tulino v Hiller, P.C. , 202 AD3d 1132, 1134-1135; Deutsche Bank Natl. Trust Co. v Blank , 189 AD3d 1678, 1679).

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant initially bears the burden of showing that the time to sue has expired.

Simmons v. Jones Law Group, LLC · filed 2023-03-15(a)(5)

"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" ( Tulino v Hiller, P.C. , 202 AD3d 1132, 1134-1135).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Kogut v. Village of Chestnut Ridge · filed 2023-03-15(a)(5)

"A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired" ( Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029 [internal quotation marks [*2]omitted]).

On a motion to dismiss as time-barred, the defendant must make a prima facie showing that the action is untimely.

Sloane v. Power Auth. of the State of N.Y. · filed 2023-03-16(a)(5)

A motion to dismiss a complaint on statute of limitations grounds pursuant to CPLR 3211 (a) (5) requires the defendant "to establish, prima facie, that the action was time-barred" ( Northeastern Indus. Park, Inc. v Hoosick Val. Contrs., Inc. , 106 AD3d 1182, 1183 [3d Dept 2013]; accord DiCenzo v Mone , 200 AD3d 1162[*2], 1164 [3d Dept 2021]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant bears the initial burden of showing that the limitations period has expired.

Haddad v. Muir · filed 2023-04-05(a)(5)

Here, the defendants, whose arguments were premised on their contention that the complaint only asserted a wrongful death cause of action, failed to meet their initial burden of demonstrating, prima facie, that the time within which to commence the cause of action alleging medical malpractice as set forth in the amended complaint has expired. Accordingly, the Supreme Court should have denied the branch of their motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must initially show that the time to commence the action has expired.

Bank of N.Y. Mellon v. Joseph · filed 2023-05-31(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Ross v Jamaica Hosp. Med. Ctr. , 122 AD3d 607, 607).

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then provide admissible evidence of timeliness or raise a question of fact.

U.S. Bank N.A. v. Corcuera · filed 2023-06-21(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669). "The burden then shift[s] to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely" ( U.S. Bank N.A. v Martin , 144 AD3d 891, 892).

Under CPLR 3211(a)(5), a defendant seeking dismissal as time-barred must first show that the time to commence the action has expired.

Deutsche Bank Natl. Trust Co. v. Natal · filed 2023-06-21(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Bayview Loan Servicing, LLC v Paniagua , 207 AD3d 691, 692; Hudson City Sav. Bank, FSB v Schoenfeld , 172 AD3d 692, 692-693).

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute of limitations grounds must first make a prima facie showing that the time to sue has expired.

Sperry Assoc. Fed. Credit Union v. John · filed 2023-07-19(a)(5)

"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see Stewart v GDC Tower at Greystone , 138 AD3d 729, 729).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), defendants may establish a prima facie limitations defense, after which the plaintiff must raise a question of fact about tolling, inapplicability, or timely commencement.

U.S. Bank N.A. v. Santos · filed 2023-07-26(a)(5)

Thus, the defendants established, prima facie, that this action was time-barred ( see Deutsche Bank Natl. Trust Co. v Gordon , 179 AD3d 770, 773). In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant initially must show that the time to sue has expired.

Sage v. Neil H. Greenberg & Assoc., P.C. · filed 2023-09-27(a)(5)

A defendant moving 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 bears the initial burden of demonstrating, prima facie, that the time in which to sue has expired ( see A.F. Rockland Plumbing Supply Corp. v Hudson Shore Associated Ltd. Partnership , 96 AD3d 885, 886; Fleetwood Agency, Inc. v Verde Elec. Corp. , 85 AD3d 850, 851).

On a motion to dismiss as time-barred under § 3211(a)(5), the defendant initially must show that the time to sue has expired.

Aspen Props. Group, LLC v. Preston · filed 2023-09-27(a)(5)

"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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Hudson City Sav. Bank, FSB v Schoenfeld , 172 AD3d 692, 693).

Section 3211(a)(5) places the initial burden on the defendant to show prima facie that the limitations period expired, then shifts the burden to the plaintiff to raise a factual issue.

Five Star Elec. Corp. v. Skanska USA Bldg., Inc. · filed 2023-11-08(a)(5)

In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as 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.

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

Valdez v. M.A. Angeliades, Inc. · filed 2023-12-20(a)(5)

Turning to the City's motion, a defendant moving pursuant to CPLR 3211(a)(5) to dismiss a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see Artup v Simeone , 189 AD3d 1143, 1145).

On a motion to dismiss as time-barred under § 3211(a)(5), the defendant initially must establish that the time to sue has expired.

Morrow v. Vibration Mountings & Controls, Inc. · filed 2024-01-17(a)(5)

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" ( Kogut v Village of Chestnut Ridge , 214 AD3d 777, 778 [internal quotation marks omitted]; see Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029). ... Here, the defendants failed to establish, prima facie, that the six-year statute of limitations expired.

On a CPLR 3211(a)(5) motion to dismiss a complaint as time-barred, the defendant initially bears the burden of showing that the time to sue has expired.

Fields v. County of Westchester · filed 2024-01-18(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the complaint is barred by the applicable statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired."

On a CPLR 3211(a)(5) motion to dismiss as untimely, respondents bear the initial burden of establishing, prima facie, when the grievance accrued.

Matter of Saxon v. Executive Comm. of the N.Y. Democratic Comm. · filed 2024-03-26(a)(5)

The court properly granted respondents' CPLR 3211(a)(5) motion to dismiss the petition filed on November 7, 2023, as untimely commenced under Election Law § 16-102(2) ( see Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP , 188 AD3d 530, 531 [1st Dept 2020]; MTGLQ Invs., LP v Wozencraft , 172 AD3d 644, 644-645 [1st Dept 2019], lv dismissed 34 NY3d 1010 [2019]). The court correctly found that respondents met their initial burden of establishing, prima facie, that the grievance that respondents declined to seat petitioners as District Leaders accrued as of a September 12, 2023 meeting of the Executive Committee of the New York Democratic Committee.

Under CPLR § 3211(a)(5), a movant seeking dismissal as time barred initially must make a prima facie showing that the time to sue has expired.

HSBC Bank USA, N.A. v. Nicholas · filed 2024-04-01(a)(5)

Based on the foregoing, the amendments instituted in FAP A will be applied in determining the cross- motion pursuant to CPLR §3211 [a] [5]. On a motion to dismiss a cause of action as barred by the statute of limitations, the movant bears the initial burden of showing prima facie that the time to sue has expired (see Wilmington Sav. Fund Socy., FSB v Alam, 186 AD3d 1464 [2d Dept 2020]; Benn v Benn, 82 AD3d 548 [l st Dept 2011 ]).

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant must first show that the time to sue expired; the plaintiff may then show that the limitations period was tolled or otherwise does not bar the action.

Cruz v. Guaba · filed 2024-04-24(a)(5)

"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. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period"

CPLR 3211(a)(5) places the initial burden on the defendant to show prima facie that the limitations period expired.

Pesola v. St. Mary's High Sch. · filed 2024-05-01(a)(5)

"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 [*2]facie, that the time within which to commence the cause of action has expired"

Section 3211(a)(5) requires the movant on a statute of limitations dismissal motion to show prima facie that the time to sue has expired.

U.S. Bank N.A. v. Cogen · filed 2024-06-03(a)(5)

Starting with the branch of the cross-motion pursuant to CPLR §213[4], on a motion to dismiss a cause of action as barred by the statute of limitations, the movant bears the initial burden of showing primafacie that the time to sue has expired (see CPLR §3211 [a][5]; Wilmington Sav. Fund Socy., FSB v Alam, 186 AD3d 1464 [2d Dept 2020]; Benn v Benn, 82 AD3d 548 [l5t Dept 2011]).

Section 3211(a)(5) permits dismissal of a complaint as time-barred when the defendant makes a prima facie showing that the action was not commenced within the applicable limitations period and the plaintiff fails to raise a factual question.

Wells Fargo Bank, N.A. v. Green · filed 2024-05-08(a)(5)

Here, since the plaintiff did not commence this action until more than six years later, the defendants sustained their initial burden of demonstrating, prima facie, that this action is time-barred ( see Everhome Mtge. Co. v Aber , 195 AD3d 682, 684, affd 39 NY3d 949). ... In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable or whether the plaintiff actually commenced this action within the applicable limitations period ( see HSBC Bank USA, N.A. v Francis , 214 AD3d 58, 61). ... Accordingly, the Supreme Court properly granted that branch of the defendants' cross-motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred and properly denied, as academic, the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants.

CPLR 3211(a)(5) places the initial burden on a defendant to establish prima facie that the statute of limitations has expired, after which the plaintiff must raise a question of fact concerning tolling, inapplicability, or timely commencement.

St. Hillaire v. Torres · filed 2024-07-03(a)(5)

"[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" ( Kaul v Brooklyn Friends Sch. , 220 AD3d 939, 940-941 [internal quotation marks omitted]; see Five Star Elec. Corp. v Skanska USA Bldg., Inc. , 221 AD3d 656, 657).

Section 3211(a)(5) permits dismissal when a claim is barred by the statute of limitations and places the initial prima facie burden on the defendant.

Cohen v. 212 W. 93 Owner LLC · filed 2024-11-04(a)(5)

CPLR § 321 l(a)(5) allows for a complaint to be dismissed if, among other reasons, it is barred by the statute oflimitations. For motions made pursuant to this provision, the defendant has the "initial burden of demonstrating, prima facie, that the time within to commence the cause of action has expired", at which point 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."

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

Lambro Indus., Inc. v. Gilbert · filed 2024-12-11(a)(5)

"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. If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period" ( Webster v Sherman , 165 AD3d 738, 741 [alteration, citations, and internal quotation marks omitted]). ... In opposition to the defendants' prima facie showing that the complaint was time-barred, the plaintiffs failed to raise a question of fact.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant bears the initial burden of establishing prima facie that the time to sue has expired.

1232 S. Blvd LLC v. FXFowle Architects, LLP · filed 2024-12-17(a)(5)

Accordingly, on this record, defendant has failed to "meet its initial burden of establishing, prima facie, that the time in which to sue has expired," as the continuous representation doctrine toll may apply ( see New York City Sch. Constr. Auth. v Ennead Architects LLP , 148 AD3d 618, 618 [1st Dept 2017]; Century Tower Assoc. NY LLC , 214 AD3d at 435).

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then show that it did not expire or that a toll or exception applies.

Jackson v. Goodfellas Pizzeria, Inc. · filed 2024-12-20(a)(5)

"On a motion to dismiss pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the defendant has the initial burden of establishing that the limitations period has expired" ( Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1561-1562 [4th Dept 2021]). Once a defendant meets that initial burden, the burden shifts "to plaintiff to aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( id . at 1562 [internal quotation marks omitted]). Here, defendants met their burden of establishing that the limitations period had expired.

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant initially must show that the time to sue has expired.

Laine v. Empire HealthChoice Assur., Inc. · filed 2025-01-22(a)(5)

The Supreme Court properly granted dismissal of the cause of action alleging breach of contract pursuant to CPLR 3211(a)(5) as time-barred. "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" ( Kaul v Brooklyn Friends Sch. , 220 AD3d 939, 940-941 [alterations and internal quotation marks omitted]; see Morrow v Vibration Mountings & Controls, Inc. , 223 AD3d 736, 737-738).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing, prima facie, that the time to commence the action has expired.

Matter of Village of Kiryas Joel v. Mezrich Estates Condominiums · filed 2025-04-02(a)(5)

'To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired'" ( North Shore Invs. Realty Group, LLC v Traina , 170 AD3d 737, 738 [internal quotation marks omitted], quoting U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835).

On a motion to dismiss as time-barred under § 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

R.M. v. Archdiocese of N.Y. · filed 2025-04-21(a)(5)

"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][ quoting Island ADC, Inc. v Baldassano Architectural Group, P.C ., 49 AD3d 815, 816 [2d Dept 2008]); see also Gravel v Cicola , 297 AD2d 620 [2d Dept 2002]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired.

Rotonde v. Stewart Title Ins. Co. · filed 2025-05-06(a)(5)

It has long been settled that "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." ... As to those claims, movant has satisfied his prima facie burden of establishing their untimeliness.

On a motion to dismiss as time barred under § 3211(a)(5), the defendant initially must show that the time to commence the action has expired.

Wilmington Sav. Fund Socy., FSB v. Sinclair · filed 2025-05-15(a)(5)

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, the "defendant bears the initial burden of demonstrating that the time within which to commence the action has expired."

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute-of-limitations grounds initially must make a prima facie showing that the time to sue has expired.

Yudkin v. Evergreen Terrace 888 Corp. · filed 2025-05-28(a)(5)

"A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired"

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Rotonde v. Stewart Titles. Ins. Co. · filed 2025-06-06(a)(5)

Even if the Court were not to find that the complaint failed to state a claim against Kaufman, it would still have to dismiss Kaufman from the action because it has long been settled that "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." ... Kaufman has also satisfied his burden as to the claims with six year statutes of limitation, since the events in question occurred more than six years ago.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the time to commence the action has expired.

Board of Mgrs. of Top of the Ridge Condominiums v. Uhlfelder · filed 2025-07-02(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that [*2]the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Kravets v Striano , 229 AD3d 613, 613 [internal quotation marks omitted]; see Campone v Panos , 142 AD3d 1126, 1127).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the moving defendant must make a prima facie showing that the time to commence the action has expired.

Bank v. Guzzetti · filed 2025-07-09(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Bank of N.Y. Mellon v Joseph , 216 AD3d 1132, 1133).

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then raise a question of fact about tolling, an exception, or timely commencement.

Dodobayeva v. Rubinoff · filed 2025-10-01(a)(5)

Since Rubinoff met her prima facie burden of demonstrating that the cause of action alleging fraud accrued no later than the date of the execution of the quitclaim deed in February 2013, rendering that cause of action, which was asserted more than six years later, time-barred, the plaintiff was required to establish that the fraud could not have been discovered before the two-year period prior to the commencement of this action, and she did not do so.

A defendant moving to dismiss a complaint as time-barred bears the initial burden of showing that the time to commence the action has expired.

P.S.C. Community Servs., Inc. v. New York State Catholic Health Plan, Inc. · filed 2025-10-22(a)(5)

“A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired” ( Texeria v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405; see Bank of N.Y. Mellon Trust Co., N.A. v Lagasse , 188 AD3d 775, 776).

On a motion to dismiss as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then raise a question of fact about timeliness or an exception.

M.H. v. S.A. · filed 2025-10-27(a)(5)

The standard for a motion to dismiss under CPLR 3211 (a) (5) on statute of limitations grounds requires the moving defendant to establish, prima facie, that the time within which to commence the action has expired. If the defendant meets this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled, is otherwise inapplicable, or whether the action was commenced within the applicable limitations period ( see Bank of New York Mellon v Jones , 239 AD3d 805 [2d Dept 2025]).

Under CPLR 3211(a)(5), a defendant seeking dismissal as time-barred must first show that the time to sue has expired; the plaintiff must then raise a factual issue about tolling, the statute’s applicability, or timely commencement.

Bank of N.Y. Mellon Trust Co. v. Kyung Lee · filed 2025-10-29(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Kravets v Striano , 229 AD3d 613, 613 [internal quotation marks omitted]). "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" ( St. Hillaire v Torres , 229 AD3d 476, 477 [internal quotation marks omitted]). ... Accordingly, the Supreme Court should have granted 170H's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it as time-barred.

On a CPLR 3211(a)(5) limitations motion, the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual question about timeliness or tolling.

Matter of Barberan v. Town of Eastchester · filed 2025-11-12(a)(5)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Bank of N.Y. Mellon v Jones , 239 AD3d 805, 806; see U.S. Bank N.A. v Derissaint , 193 AD3d 790, 790). "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( Bank of N.Y. Mellon v Jones , 239 AD3d at 806; see U.S. Bank N.A. v Derissaint , 193 AD3d at 790).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must establish that the time to sue has expired.

Argo v. New York City Employees Retirement Sys. NYCERS · filed 2025-11-12(a)(5)

'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'" ( Deutsche Bank Natl. Trust Co. v Pena , 240 AD3d 475, 476, quoting Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669).

On a CPLR 3211(a)(5) motion to dismiss as time-barred, the defendant initially bears the burden of showing that the time to commence the action has expired.

Cotto v. Robinson · filed 2025-12-31(a)(5)

"A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired" ( Marcotrigiano v Dental Specialty Assoc., P.C. , 209 AD3d 850, 851 [internal quotation marks omitted]; see CPLR 3211[a][5]). ... Here, Securitas met its prima facie burden by demonstrating that the time within which to commence an action based on the accident on April 14, 2017, had expired prior to the plaintiff's filing of the amended complaint naming Securitas as a defendant ( see id. ; 9 NYCRR 8.202.8, 8.202.67; Williams v Ideal Food Basket, LLC , 219 AD3d 917, 918).

Under CPLR 3211(a)(5), a defendant moving to dismiss as time-barred must first show that the time to sue expired; the opposing party must then raise a question of fact about timeliness or tolling.

Extech Bldg. Materials, Inc. v. J Cos., LLC · filed 2026-03-25(a)(5)

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

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

U.S. Bank, N.A.. v. Benjamin · filed 2026-04-08(a)(5)

"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"

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first establish that the time to commence the action has expired.

U.S. Bank Trust N.A. v. Barr · filed 2026-05-20(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Bank of N.Y. Mellon v Jones, 239 AD3d 805, 806; U.S. Bank N.A. v Derissaint, 193 AD3d 790, 791).

A court may deny a continuance for discovery on a motion to dismiss when an independent legal bar would defeat the claims regardless of what discovery reveals.

Cooper v. Arbor Realty Trust, Inc. · filed 2025-06-26(d)

Furthermore, the court providently declined to grant plaintiff a continuance to conduct discovery. Even if discovery might allow plaintiff to find writings that satisfy the statute of frauds, Real Property Law § 442-d independently bars all of his claims.

CPLR 3211(d) permits denial of a motion to dismiss when the plaintiff shows that facts essential to opposing it may exist but cannot yet be stated.

Soloway v. The CIM Group · filed 2024-02-02(d)

CPLR 3211 (d) provides that ... a motion to dismiss can be denied where plaintiff submits affidavits showing that facts essential to justify opposition may exist but cannot then be stated. Plaintiff made such averments in his verified pleading (see NYSCEF Doc No. 1, ,iip-4, 9, 12, 41), and so this facet of Defendants' motion must also be denied.

Under CPLR 3211(d), a court may deny a motion to dismiss when facts essential to opposing it may exist but cannot yet be stated; averments in a verified pleading can support that showing.

Soloway v. CIM Group · filed 2024-02-02(d)

CPLR 3211 (d) provides that ... a motion to dismiss can be denied where plaintiff submits affidavits showing that facts essential to justify opposition may exist but cannot then be stated. Plaintiff made such averments in his verified pleading ... and so this facet of Defendants' motion must also be denied.

Section 3211(d) permits denial of a motion to dismiss when facts needed to oppose it may exist but cannot yet be stated.

ARK265 Doe v. Archdiocese of N.Y. · filed 2023-11-09(d)

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 G.T. v Roman Cath. Diocese of Brooklyn, New York , 211 AD3d 413 [1st Dept 2022]; CPLR 3211[d]).

A motion to dismiss under CPLR 3211(a)(7) is not premature for lack of discovery when the plaintiff makes no showing that further discovery would reveal facts essential to opposing it.

Tucker v. Kalos Health, Inc. · filed 2022-02-04(a)(7)

We reject plaintiff's contention that defendants' motions should have been denied as premature in light of the need for further discovery inasmuch as plaintiff made no showing that "additional discovery would disclose facts essential to justify opposition to defendants' motion[s]" ( Spring v County of Monroe , 151 AD3d 1694, 1696 [4th Dept 2017] [internal [*2]quotation marks omitted]).

CPLR 3211(d) requires a party seeking to avoid dismissal because facts are unavailable to specify the facts essential to opposing the motion and support its claim that the information is unavailable.

L&M 353 Franklyn Ave. LLC v. Steinman · filed 2022-02-03(d)

Plaintiff failed to show that defendants' motion should be denied pursuant to CPLR 3211(d). Plaintiff's counsel affirmed only that plaintiff's judgment against S. Land was unsatisfied and that S. Land purportedly received $7 million in a sale of certain real property. Counsel otherwise concluded that it was "reasonable to infer" that defendants, as members of S. Land, were beneficiaries of any disbursements of the company's assets. Moreover, the position that "facts pertaining to disbursements made by S. Land are within the sole knowledge and possession of Defendants" is unsupported. There is no indication that plaintiff sought to enforce its judgment or that it sought postjudgment discovery from S. Land, which might have disclosed the information plaintiff contends is unavailable. Nor did counsel specify "the facts essential to justify opposition" ( see CPLR 3211[d]).

A motion to dismiss is not premature under CPLR 3211(d) without an evidentiary basis to believe discovery may produce relevant evidence or that essential facts are exclusively within the defendants’ knowledge and control.

Abruzzi v. Bond Realty, Inc. · filed 2022-01-12(d)

Furthermore, contrary to the plaintiff's contention, the defendants' motions were not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motions were exclusively within the knowledge and control of the defendants ( see CPLR 3212[f]; 3211[d]; Niyazov v Hunter EMS, Inc. , 154 AD3d 954, 955; Kimyagarov v Nixon Taxi Corp. , 45 AD3d 736, 737).

Section 3211(d) permits denial of a motion to dismiss when facts needed to oppose it may exist and discovery is necessary to disclose them.

BL DOE 4 v. Fleming · filed 2021-11-19(d)

The court therefore properly denied that part of defendant's motion seeking dismissal of plaintiff's second cause of action against defendant under CPLR 3211 (a) (7) because plaintiff established that "facts [necessary for her to oppose the motion properly] may exist and that discovery is necessary for a full disclosure" ( Nice v Combustion Eng'g , 193 AD2d 1088, 1090 [4th Dept 1993]; see CPLR 3211 [d]; Cantor v Levine , 115 AD2d 453, 454 [2d Dept 1985]).

CPLR 3211(d) requires a party seeking additional discovery to oppose dismissal to establish that the discovery would disclose facts essential to that opposition.

Tripi v. Alabiso · filed 2020-12-23(d)

Contrary to plaintiff's contention, Supreme Court properly concluded that plaintiff failed to "establish[ ] that additional discovery would disclose facts 'essential to justify opposition' to defendant's motion" ( Bouley v Bouley , 19 AD3d 1049, 1051 [4th Dept 2005], quoting CPLR 3211 [d]; see Gillies v National Fire Ins. Co. of Hartford , 56 AD3d 1236, 1238 [4th Dept 2008], lv denied 12 NY3d 702 [2009]).

CPLR 3211(d) permits denial of a motion to dismiss when facts essential to opposing it may be in the defendants' possession.

Scarbough v. Gonzalez · filed 2020-10-07(d)

We agree with the Supreme Court's determination to deny the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them since it appears that facts essential to the opposition of the motion may be in the defendants' possession ( see CPLR 3211[d]; Giunta's Meat Farms, Inc. v Pina Constr. Corp. , 89 AD3d 799, 800).

CPLR 3211(d) requires a party seeking discovery to oppose dismissal to show that essential facts exist but cannot yet be stated.

Shoreham Hills, LLC v. Sagaponack Dream House, LLC · filed 2020-03-04(d)

Finally, the plaintiffs have failed to meet their burden of establishing that facts essential to justify opposition to the motion exist, but cannot be stated, warranting denial of the motion to allow for discovery (CPLR 3211 [d]). ... Accordingly, the branch of the plaintiffs' cross motion which is for discovery pursuant to CPLR 3211 (d) is denied.

Section 3211(d) allows discovery or postponement of a motion to dismiss when essential opposing facts may exist but cannot yet be stated.

Valyrakis v. 346 W. 48th St. Hous. Dev. Fund Corp. · filed 2018-05-01(d)

However, the affidavit they submitted in opposition to defendants' cross motion does not satisfy CPLR 3211(d), and, even on appeal, plaintiffs do not specify the discovery they seek ( see Auerbach , 47 NY2d at 636).

Section 3211(d) permits a motion to dismiss to be denied without prejudice to renewal when facts essential to oppose it may exist and further discovery is needed.

Priester v. Frangakis · filed 2021-10-01(d)

We further conclude that the court did not err in denying Willcare's motion without prejudice to renew because facts essential to justify opposition to the motion may exist ( see Amigo Food Corp. v Marine Midland Bank-N.Y. , 39 NY2d 391, 395 [1976]; see generally CPLR 3211 [d]), and thus further discovery is needed ( see Peterson v Spartan Indus. , 33 NY2d 463, 466 [1974]).

Under CPLR 3211(d), a party opposing dismissal may show that facts essential to its opposition cannot yet be stated.

Friscia v. Village of Geneseo · filed 2021-08-26(d)

With respect to the remaining causes of action, we agree with plaintiff that the court erred in determining that plaintiff had failed to meet his burden of establishing that "facts essential to justify opposition [to the motion]" could not be stated (CPLR 3211 [d]).

Section 3211(d) permits denial of a dismissal motion when facts needed to oppose it may exist and discovery is necessary to disclose them.

Visiko v. Fleming · filed 2021-11-19(d)

The court therefore properly denied that part of defendant's motion seeking dismissal of plaintiff's second cause of action against defendant under CPLR 3211 (a) (7) because plaintiff established that "facts [necessary for her to oppose the motion properly] may exist and that discovery is necessary for a full disclosure" ( Nice v Combustion Eng'g , 193 AD2d 1088, 1090 [4th Dept 1993]; see CPLR 3211 [d]; Cantor v Levine , 115 AD2d 453, 454 [2d Dept 1985]).

Section 3211(d) requires more than speculation that discovery might uncover evidence needed to oppose dismissal.

Greg Beeche, Logistics, LLC v. Cross Country Constr., LLC · filed 2022-11-03(d)

However, plaintiff made no showing that evidence outside of the agreement exists to support its claim, and dismissal cannot be avoided by speculating that discovery might uncover essential evidence ( see CPLR 3211 [d]; Muncil v Widmir Inn Rest. Corp. , 155 AD3d 1402, 1405 [3d Dept 2017]; Rochester Linoleum & Carpet Ctr., Inc. v Cassin , 61 AD3d 1201, 1202 [3d Dept 2009]).

CPLR 3211(d) permits a court to deny a motion to dismiss without prejudice to renewal after limited discovery needed to resolve the motion.

Slomba v. Klepp · filed 2023-02-03(d)

Contrary to defendant's contention, we conclude that Supreme Court did not abuse its discretion in denying the motion without prejudice to renew after limited discovery on the issue whether plaintiff was required to serve a notice of claim ( see CPLR 3211 [d]; Gonzalez-Doldan v Kaleida Health, Inc. , 160 AD3d 1384, 1384 [4th Dept 2018]; see generally Herzog v Town of Thompson , 216 AD2d 801, 803 [3d Dept 1995]).

CPLR 3211(d) requires a plaintiff seeking to defer a motion to dismiss for discovery to show that discovery is needed to oppose the motion.

Pope Contr., Inc. v. New York City Hous. Auth. · filed 2023-03-16(d)

Supreme Court properly declined to deny defendant's motion to dismiss as premature (CPLR 3211 [d]) as plaintiff did not show that discovery was needed to oppose the motion, which is based on the language of the settlement agreement ( see Rochester Linoleum & Carpet Ctr., Inc. v Cassin , 61 AD3d 1201, 1202 [3d Dept 2009]).

CPLR 3211(d) does not permit discovery to oppose a dismissal motion based solely on speculation that it might reveal essential facts.

245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC · filed 2023-08-31(d)

However, other than speculating as to what discovery might reveal, Landlord has failed to make a sufficient showing that facts essential to its opposition could be yielded in discovery ( see Cracolici , 127 AD3d at 413; see also Karpovich v City of New York , 162 AD3d 996, 998 [2d Dept 2018]). Accordingly, the court denies Landlord's request to pursue discovery pursuant to CPLR 3211 (d).

CPLR 3211(d) gives the court discretion to deny a motion to dismiss and permit disclosure.

Mercedes v. Cool Wind Ventilation Corp. · filed 2024-01-30(d)

Moreover, pursuant to CPLR 3211(d), "the court may deny the motion , . . [and] may order a continuance to permit . . . disclosure to be had and may make such other order as may be just." Here, Sumner failed to establish that the court improvidently exercised its discretion by denying its request to limit discovery to jurisdiction related issues and indefinitely hold its motions in abeyance until such jurisdictional discovery was complete.