N.Y. C.P.L.R. § 3211

Section 3211(a)(7) permits dismissal of a petition that fails to state a legally cognizable claim, even when its allegations are read in the petitioner's favor.

Matter of Kay · filed 2024-10-03(a)(7)

In light of the court's determination that the in terrorem clause, which Petitioner quoted in its entirety in his 2019 Petition, does not apply under these circumstances, Respondents are entitled to dismissal of the 2019 Petition under CPLR 321 l(a)(7). Petitioner has failed to state a claim based on the four comers on his pleadings.

On a motion to dismiss counterclaims for failure to state a claim, the court accepts the pleaded facts as true and gives the counterclaimant all possible inferences.

Takkar v. International Capital Partners, LLC · filed 2024-10-15(a)(7)

As this is Plaintiff’s motion to dismiss, all factual allegations pled by Defendants are taken to be true and Defendants have the benefit of all possible inferences.

On a motion to dismiss for failure to state a claim, the court accepts the petition’s allegations as true and gives them every favorable inference.

Matter of Chen · filed 2024-10-17(a)(7)

Likewise, accepting the allegations of the petition as true and affording them the benefit of every favorable inference, as the court must on a motion to dismiss for failure to state a claim under CPLR 321 l(a)(7) (see Cherofsky v Cherofsky, 145 AD3d 850 [2d Dept 2016]), the court determined that the allegations which Petitioners made on behalf of the Trust, including that Kendall took funds which had been distributed to his children from their bank accounts in violation of his fiduciary obligations as trustee, did not establish that the Trust suffered any harm as a result of Kendall's actions.

On a motion to dismiss for failure to state a claim, the court does not weigh credibility or the strength of the claim.

Adeniji v. City of New York · filed 2024-11-26(a)(7)

With regard to a motion made pursuant to CPLR § 3211 (a) (7), the court does not make credibility determinations or assess the strength of a particular cause of action.

On a motion to dismiss for failure to state a claim, 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.

Roberson v. New York City Health & Hosp. Corp. · filed 2024-11-30(a)(7)

“On a CPLR 3211 motion to dismiss, the court will ‘accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’” (Nonnon v City of New York, 9 NY3d 825, 827 [2007]).

On a motion 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.

Miller v. Miller · filed 2024-12-03(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." Leon v Martinez, 84 NY2d 83, 87-88 [1994].

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

GNHC 1703-518, LLC v. Venari Partners, LLC · filed 2024-07-11(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."

On a motion to dismiss for failure to state a claim, 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.

SkyX Group Inc v. Foundation for a Smoke Free World · filed 2024-12-20(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87 [1994]).

CPLR 3211(a)(7) requires a court deciding a failure-to-state-a-claim motion to accept the pleaded facts as true, give the petitioner every favorable inference, and determine whether those facts fit a cognizable legal theory.

Matter of Clarke v. Azar · filed 2024-12-26(a)(7)

"On a motion to dismiss for failure to state a claim pursuant to CPLR 3211 (a) (7) or CPLR 7804 (f), the Court must accept the facts as alleged in the petition as true, accord petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Matter of Munoz v Annucci , 195 AD3d 1257, 1263 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]; see Matter of Ferran v City of Albany , 116 AD3d 1194, 1195 [3d Dept 2014]).

On a motion under CPLR 3211(a)(7), the court accepts the complaint’s factual allegations as true and asks whether the plaintiff can succeed on any reasonable view of those facts.

Woo v. City of New York · filed 2025-01-08(a)(7)

“In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), our well-settled task is to determine whether, accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated” (Aristy-Farer v State of New York, 29 NY3d 501, 509 [2017] [internal quotation marks and citations omitted]).

On a motion to dismiss for failure to state a claim, the court accepts the pleaded facts as true, gives the claimant favorable inferences, and asks whether those facts fit a cognizable legal theory.

Mermelstein v. Waspit Group, Inc. · filed 2025-01-15(a)(7)

On a motion to dismiss under CPLR 3211 (a) (7), the court accepts the facts as alleged in [*5]the pleadings as true, accords the claimant the benefit of any possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83 [1994]).

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

McCudden v. Canisius Coll. · filed 2025-03-14(a)(7)

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . [and the court will] accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Falso v Children & Family Servs. , 227 AD3d 1466, 1467 [4th Dept 2024]).

On a motion to dismiss a family offense petition under CPLR 3211 (a) (7), the court liberally construes the petition, accepts its allegations as true, and gives the petitioner every favorable inference.

Matter of Brooks-Morrison v. Johnson · filed 2025-03-21(a)(7)

In determining a motion to dismiss a family offense petition pursuant to CPLR 3211 (a) (7), " 'the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference' " ( Matter of Xin Li v Ramos , 125 AD3d 681, 682 [2d Dept 2015]; see Matter of Little v Little , 175 AD3d 1070, 1072 [4th Dept 2019]).

Section 3211(a)(7) permits dismissal when a complaint offers only conclusory allegations and fails to plead facts supporting the elements of a claim.

Thor Gateway I & II, LLC v. Greater Omentum & Lawrence Harlem Foods LLC · filed 2025-04-09(a)(7)

On a CPLR § 3211 (a)(7) motion to dismiss, a court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 538 [1st Dept 2019]). ... The unverified complaint is entirely devoid of any specific or detailed factual allegations to adequately allege the material elements of the claim, including: the relationship of the parties, the existence of an enforceable guaranty agreement, or the supposed underlying material terms or conditions thereof (Martin Assoc., Inc. v Illinois Natl. Ins. Co., 188 AD3d 572 [1st Dept 2020]; Chip Fifth Ave. LLC v Quality King Distributors, Inc., 158 AD3d 418 [1st Dept 2018]).

On a motion to dismiss for failure to state a claim, the court liberally construes the pleading, accepts its factual allegations as true, and gives the plaintiff every possible inference.

Castillo v. Fresh Dining Concepts LLC · filed 2025-04-11(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)(7) requires courts reviewing a pre-answer motion to dismiss to draw favorable inferences from the pleadings and determine whether the alleged facts fit a cognizable legal theory.

Huaman v. United Airlines, Inc. · filed 2025-04-21(a)(7)

When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v Mobile Life Support Services, Inc., 37 NY3d 236,239 [2021]).

Section 3211(a)(7) requires courts to accept pleaded facts as true and give plaintiffs favorable inferences when deciding whether a complaint states a claim.

Holder v. Watson · filed 2025-05-02(a)(7)

On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint are deemed to be true, and the plaintiff is accorded the benefit of every possible favorable inference ( Leon v Martinez , 84 NY2d 83, 87 [1994]). ... Under the foregoing standards, plaintiffs have alleged a claim for breach of the contract of sale ( Markov v Katt , 176 AD3d 401, 401-02 [1st Dept 2019]; Second Source Funding, LLC v Yellowstone Capital, LLC , 144 AD3d 445, 445-46 [1st Dept 2016]).

On a motion to dismiss under § 3211(a)(7), the court accepts the complaint’s factual allegations as true and gives the plaintiff every favorable inference.

Winfrey v. City of New York · filed 2025-05-20(a)(7)

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

Section 3211(a)(7) requires courts to construe pleadings liberally, accept allegations as true, and ask whether the alleged facts fit a cognizable legal theory.

Benchmark Plus Inst. Partners, L.L.C. v. Sacchetti · filed 2025-06-10(a)(7)

On a motion to dismiss brought pursuant to CPLR § 3211(a)(7), “pleadings are to be afforded a liberal construction, allegations are taken as true, the plaintiff is afforded every possible inference, and a determination is made only as to whether the facts as alleged fit within any cognizable legal theory.”

Under CPLR 3211(a)(7), a court accepts the complaint’s allegations as true and draws reasonable inferences in the plaintiff’s favor when deciding whether to dismiss a claim.

Oppenheimer & Co. Inc. v. Vivani Med. Inc. · filed 2025-06-12(a)(7)

Here, accepting the Complaint's allegations as true and drawing all reasonable inferences in plaintiffs favor, the tortious interference claim must be dismissed.

Section 3211(a)(7) permits pre-answer dismissal when the complaint fails to state a claim.

Vargas v. City of New York · filed 2025-06-30(a)(7)

However, different standards apply, and dismissal under CPLR §3211 (a) (7), prior to the interposition of an answer, is proper only where plaintiff has failed to state a claim.

Section 3211(a)(7) requires courts to read a complaint liberally, accept its factual allegations as true, and give the plaintiff every favorable inference when deciding whether it states a claim.

Robert L. v. Madison Sq. Boys & Girls Club · filed 2025-08-13(a)(7)

A motion to dismiss pursuant to CPLR § 3211(a)(7) addresses the legal sufficiency of the pleadings. On such a motion, the court must afford the complaint a liberal construction, accept the facts alleged therein as true, and accord the plaintiff the benefit of every possible favorable inference ( Leon v Martinez , 84 NY2d 83, 87—88 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC , 25 NY3d 759, 764 [2015]; 511 W. 232nd Owners Corp. v Jennifer Realty Co ., 98 NY2d 144, 151—152 [2002]).

On a motion under CPLR 3211(a)(7), the court accepts the pleaded facts as true, gives the pleader every favorable inference, and asks whether those facts fit a cognizable legal theory.

Matter of Adelsberg (Sternklar) · filed 2025-09-15(a)(7)

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

A complaint that fails to state a claim cannot survive a CPLR 3211(a)(7) motion merely because discovery might reveal supporting facts.

Borini v. Inform Studios, Inc. · filed 2026-01-27(a)(7)

Under these circumstances, plaintiffs failed to state a claim for breach of contract as against Installer, Block, and Eck ( see Remora Capital S.A. v Dukan , 175 AD3d 1219, 1220 [1st Dept 2019]), and "the hope that something will turn up in discovery is an insufficient basis to deny the motion to dismiss" ( Yovich v Montefiore Nyack Hosp. , 212 AD3d 425, 426 [1st Dept 2023]).

On a motion to dismiss under subsection (a)(7), the court accepts pleaded facts as true, gives the petitioner every favorable inference, and asks whether the facts fit a cognizable legal theory.

Matter of Upton v. Town of Mooers · filed 2026-03-05(a)(7)

"On a motion to dismiss for failure to state a claim pursuant to CPLR 3211 (a) (7) or CPLR 7804 (f), [we] must accept the facts as alleged in the petition as true, accord [the] petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Matter of Clarke v Azar , 233 AD3d 1396, 1396-1397 [3d Dept 2024] [internal quotation marks and citations omitted], appeal dismissed 43 NY3d 999 [2025]; see Bennett v Bennett , 223 AD3d 1013, 1014 [3d Dept 2024]).

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

CPPIB Credit Invs. II Inc. v. Deutsche Bank Trust Co. Ams. · filed 2026-03-17(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a viable claim, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87 [1994]).

CPLR 3211(a) permits dismissal of a breach-of-contract claim when the complaint alleges no facts showing that the defendant breached the agreement.

Armendariz v. Luna · filed 2014-10-30(a)

Plaintiffs also fail to allege any facts demonstrating that Luna or Ortega posted disparaging statements about plaintiffs or failed to remove such postings, in breach of the agreement. Thus, the action against them must also be dismissed.

CPLR 3211(a)(7) permits dismissal when a complaint lacks allegations sufficient to state a claim, even under the liberal pleading standard applied on a motion to dismiss.

RKA Film Fin., LLC v. Kavanaugh · filed 2017-06-27(a)(7)

The Court recognizes the liberal pleading requirements at the motion to dismiss stage ( EBC I, Inc. v Goldman, Sachs & Co. , 5 NY3d 11 [2005]). However, absent substantive allegations that Mnuchin was responsible for, aware of, or participated in the purported fraud surrounding the Funding Agreement, liability cannot attach ( Prudential-Bache Metal Co. v Binder , 121 AD2d 923 [1st Dept 1986]).

A party waives a lack-of-capacity defense by failing to raise it in a responsive pleading or a pre-answer motion to dismiss.

Board of Mgrs. of Fishkill Woods Condominium v. Gottlieb · filed 2020-06-24(a)(3), (e)

The appellants waived any argument, in effect, that the BOM parties lacked the capacity to sue them, as the appellants failed to assert that defense in their responsive pleadings or in a pre-answer motion to dismiss ( see CPLR 3211[a][3]; [e]; City of New York v State of New York , 86 NY2d 286, 292; Chase Manhattan Bank v Nath , 162 AD3d 975, 978; Perine Intl. Inc. v Bedford Clothiers, Inc. , 143 AD3d 491, 492; Town of Delhi v Telian , 119 AD3d 1049, 1050; Edwards v Siegel, Kelleher & Kahn , 26 AD3d 789, 790).

CPLR 3211(a)(3) and (e) require a challenge based on lack of standing or capacity to be raised in a pre-answer motion or responsive pleading, or it is waived.

Zeus Constr. Servs., LLC v. Fame Constr., Inc. · filed 2018-06-15(a)(3), (e)

We need not reach the issue of whether this is a claim pertaining to standing or to capacity ( see Wells Fargo Bank Minn., N.A. v Mastropaolo , 42 AD3d 239 , 242 [2007]), since, in any event, defendant waived this issued by failing to raise it either in a pre-answer motion to dismiss the [*4] complaint or in its responsive pleading ( see CPLR 3211 [a] [3], [e]; see also Perine Intl. Inc. v Bedford Clothiers, Inc. , 143 AD3d 491 , 492 [2016]; 32nd Ave., LLC v Angelo Holding Corp. , 88 AD3d 986 , 987 [2011]).

Section 3211(e) waives a standing defense if it is not raised in the answer or in a pre-answer motion to dismiss, although it may later be raised in an answer amended with leave of court.

U.S. Bank N.A. v. Laino · filed 2019-05-08(e)

" [A]n argument that a plaintiff lacks standing, if not asserted in the defendant's answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211(e)'" ( U.S. Bank, N.A. v Sharif , 89 AD3d 723, 724, quoting Wells Fargo Bank Minn., N.A. v Mastropaolo , 42 AD3d 239, 242; see US Bank N.A. v Nelson , 169 AD3d 100; JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC , 84 AD3d 1173, 1173).

Section 3211(e) requires certain defenses, including lack of standing, to be raised in the answer or in a timely motion to dismiss or they are waived.

Caliber Home Loans Inc. v. Xiu Lian Tang · filed 2019-05-09(e)

Defendants waived the defense of lack of standing by failing to assert it in the answer or in a timely motion to dismiss (CPLR 3211[e]; Bank of Am., N.A. v Brannon , 156 AD3d 1, 7 [1st Dept 2017]).

CPLR 3211(a)(3) permits dismissal for lack of standing, and CPLR 3211(e) waives that objection when it is not raised in the litigation.

Rosenthal v. Hudson Val. Fed. Credit Union · filed 2019-05-09(a)(3), (e)

To the extent that an issue may have existed as to plaintiff's standing to bring this action, we note that defendant failed to raise plaintiff's standing at any point in this litigation, and thus waived the issue ( see CPLR 3211 [a] [3], [e]; see also Wells Fargo Bank, N.A. v Erobobo , 127 AD3d 1176 , 1177-1178 [2015]; Lambert v Delta Air Lines , 48 Misc 3d 137 [A], 2015 NY Slip Op 51137[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Section 3211 permits a defendant to preserve a capacity defense by asserting it in the answer and bars a later challenge to its timing when the opposing party did not move to strike it.

Gulledge v. Jefferson County · filed 2019-05-16(a)(3), (b), and (e)

Initially, defendants' "[p]articipation in the defense of the action [did] not waive" a capacity defense that was properly asserted in their answers pursuant to CPLR 3211 (a) (3) and (e) ( Calloway v National Servs. Indus. , 93 AD2d 734, 735 [1983], affd for reasons stated below 60 NY2d 906 [1983]). Plaintiff, in any event, did not move to strike the defense and will not now be heard to complain that defendants waited too long in pursuing it ( see CPLR 3211 [b]; Dickinson v Houston , 97 AD2d 665, 666 [1983], lv denied 61 NY2d 606 [1984]).

Section 3211 waives objections to a plaintiff's standing or capacity to sue unless the defendant raises them in an answer or pre-answer motion to dismiss.

Mortgage Elecs. Registration Sys., Inc. v. Mercado · filed 2021-05-04(a)(3), (e)

As relevant here, failure to include either a defense in the answer or pre-answer motion to dismiss a cause of action waives any objection as to a plaintiff's standing or legal capacity to sue ( see CPLR 3211[a][3], [e]; Mortgage Elec. Registration Sys., Inc. v Gifford , 133 AD3d 429, 430 [1st Dept 2015]; Security Pac. Natl. Bank v Evans , 31 AD3d 278, 279-280 [1st Dept 2006], lv dismissed 8 NY3d 837 [2007]).

Section 3211(a)(3) permits dismissal for lack of standing, while section 3211(e) waives that defense if it is not raised in the answer or a pre-answer motion.

Alrose Steinway, LLC v. Jaspan Schlesinger, LLP · filed 2022-05-19(a)(3), (e)

To the extent defendants argue that plaintiff lacks standing, they waived that argument by failing to assert lack of standing in their answer or their pre-[*2]answer motion to dismiss ( see CPLR 3211[a][3], [e]).

A defendant waives a standing or capacity defense by failing to raise it in the answer.

Judson Realty, LLC v. Judson CRE LLC · filed 2025-12-16(e)

Defendants did not raise a standing or capacity defense in their answer, rendering this objection waived under CPLR 3211(e) ( see e.g. Perine Intl. Inc. v Bedford Clothiers, Inc. , 143 AD3d 491, 492 [1st Dept 2016]).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of coming forward with sufficient evidence to prove jurisdiction.

Ardent Harmony Fund, Inc. v. BDO Trinity Ltd. · filed 2026-04-08(a)(8)

Thus, where a defendant has moved pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, "the plaintiff [*2]bears the burden of coming forward with sufficient evidence to prove jurisdiction" (Aybar v Aybar, 169 AD3d 137, 142, affd 37 NY3d 274; see Fischbarg v Doucet, 9 NY3d 375, 381 n 5).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a sufficient start in showing that jurisdiction exists.

Belzberg v. Leonidov · filed 2026-02-19(a)(8)

But a “plaintiff need only make a sufficient start in demonstrating the existence of personal jurisdiction in responding to defendants’ motion.”

On a motion to dismiss for lack of personal jurisdiction, the plaintiff need not establish jurisdiction conclusively but must make a sufficient prima facie showing.

Talipot ESG Invs. LLC v. Bulltick Fin. Advisory Servs. LLC · filed 2025-03-19(a)(8)

Although plaintiff need not conclusively establish that there is personal jurisdiction in defending against a motion to dismiss, he or she must make at least a "'sufficient start' in demonstrating, prima facie, the existence of personal jurisdiction" ( see Matter of James v iFlex Inc. , 185 AD3d 22, 29-30 [1st Dept 2020]).

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing that jurisdiction exists.

Charles v. Charles · filed 2025-03-25(a)(8)

However, in opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60 [1st Dept 2024]).

A plaintiff opposing a motion to dismiss for lack of personal jurisdiction need only make a prima facie showing that jurisdiction exists.

Fanelli v. Latman · filed 2022-02-09(a)(8)

When opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of jurisdiction, a plaintiff "need only make a prima facie showing" that personal jurisdiction over the moving defendant exists ( Opticare Acquisition Corp. v Castillo , 25 AD3d 238, 243; see Lowy v Chalkable, LLC , 186 AD3d 590, 591).

A plaintiff opposing dismissal for lack of personal jurisdiction under CPLR 3211(a)(8) need only make a prima facie showing that jurisdiction exists.

Lowy v. Chalkable, LLC · filed 2020-08-12(a)(8)

However, "[i]n opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists" ( Skutnik v Messina , 178 AD3d at 744-745 [internal quotation marks omitted]). ... Here, in opposition to the PowerSchool defendants' motion, the plaintiffs failed to make a prima facie showing that the causes of action asserted against the PowerSchool defendants arise out of their activities in New York ( cf. D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d at 299).

On a motion to dismiss for lack of personal jurisdiction, the party asserting jurisdiction bears the burden of showing that statutory and due process requirements are satisfied.

Matter of James v. iFinex Inc. · filed 2020-07-09(a)(8)

On a motion pursuant to CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction, the party asserting jurisdiction has the burden of demonstrating "satisfaction of statutory and due process prerequisites" ( Stewart v Volkswagen of Am. , 81 NY2d 203, 207 [1993]).

On a motion to dismiss for lack of personal jurisdiction, the court views the plaintiff's evidence favorably and resolves doubts in favor of jurisdiction.

Metro Health Prods., Inc. v. Maryland Auto Ins. Fund · filed 2020-02-14(a)(8)

In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction ( see Brandt , 273 AD2d at 430).

Under CPLR 3211(a)(8), a plaintiff opposing dismissal for lack of personal jurisdiction need only make a prima facie showing that jurisdiction exists.

Pavlova v. American Ind. Ins. Co. · filed 2018-06-15(a)(8)

In opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, 'a plaintiff need only make a prima facie showing that such jurisdiction exists' " ( Hopstein v Cohen , 143 AD3d 859 , 860 [2016], quoting Lang v Wycoff Hgts. Med. Ctr. , [*2] 55 AD3d 793, 798 [2008]).

CPLR 3211(a)(8) requires a plaintiff opposing a motion to dismiss for lack of personal jurisdiction to make a prima facie showing that the defendant is subject to the court's personal jurisdiction.

Zeidan v. Scott's Dev. Co. · filed 2019-06-07(a)(8)

"[I]n opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), [plaintiffs] need only make a prima facie showing that the defendant[s] . . . [were] subject to the personal jurisdiction of" the court ( Halas v Dick's Sporting Goods , 105 AD3d 1411, 1412 [4th Dept 2013] [internal quotation marks omitted]).

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

Aybar v. Goodyear Tire & Rubber Co. · filed 2019-09-18(a)(8)

"While the ultimate burden of proof rests with the party asserting jurisdiction, the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court" ( Cornely v Dynamic HVAC Supply, LLC , 44 AD3d 986, 986 [citation omitted]; see Abad v Lorenzo , 163 AD3d 903, 904).

On a motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing in opposition, although the party asserting jurisdiction bears the ultimate burden of proof.

Barone v. Bausch & Lomb, Inc. · filed 2021-02-05(a)(8)

Although the ultimate burden of proof rests with the party asserting jurisdiction, in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), the plaintiff need only make a prima facie showing that the defendant is subject to personal jurisdiction ( see Aybar v Goodyear Tire & Rubber Co. , 175 AD3d 1373, 1373 [2d Dept 2019]; Halas v Dick's Sporting Goods , 105 AD3d 1411, 1412 [4th Dept 2013]).

A party opposing dismissal under CPLR 3211(a)(8) need only make a prima facie showing of personal jurisdiction, although that party bears the ultimate burden of proof.

Matter of William A. (Jessica F.) · filed 2021-03-19(a)(8)

"While the ultimate burden of proof rests with the party asserting jurisdiction, . . . [a] plaintiff[] in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the [court]" ( Cornely v Dynamic HVAC Supply, LLC , 44 AD3d 986, 986 [2d Dept 2007]; see Constantine v Stella Maris Ins. Co., Ltd. , 97 AD3d 1129, 1130 [4th Dept 2012]).

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing that jurisdiction exists.

Transcan Sys., Inc. v. Seldat Distrib., Inc. · filed 2022-10-19(a)(8)

"When opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of [*2]jurisdiction, a plaintiff need only make a prima facie showing that personal jurisdiction over the moving defendant exists" ( Fanelli v Latman , 202 AD3d 758, 759 [internal quotation marks omitted]; see Skutnik v Messina , 178 AD3d 744, 744-745).

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the opposing party need only make a prima facie showing that jurisdiction exists.

Aybar v. US Tires & Wheels of Queens, LLC · filed 2022-11-02(a)(8)

However, in opposing a motion pursuant to CPLR 3211(a)(8) to dismiss based on lack of personal jurisdiction, a party need only make a prima facie showing that personal jurisdiction exists ( see Federal Natl. Mtge. Assn. v Grossman , 205 AD3d 770, 771; Lowy v Chalkable, LLC , 186 AD3d at 590).

On a motion under CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing that jurisdiction exists.

P.S. Fin., LLC v. Eureka Woodworks, Inc. · filed 2023-02-15(a)(8)

"In opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists" ( Skutnik v Messina , 178 AD3d 744, 744-745 [internal quotation marks omitted]).

To oppose a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie showing of jurisdiction.

WCVAWCK-Doe v. Boys & Girls Club of Greenwich, Inc. · filed 2023-04-19(a)(8)

"However, to successfully oppose [a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction], the plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court" ( America/Intl. 1994 Venture v Mau , 146 AD3d at 51). ... Here, viewing the plaintiff's allegations in the light most favorable to him, the plaintiff demonstrated, prima facie, that the Club, a Connecticut not-for-profit corporation, committed a tortious act within the State of New York in accordance with the meaning of CPLR 302(a)(2), the subdivision of the long-arm statute at issue on this appeal.

On a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), the plaintiff need only make a prima facie showing that jurisdiction exists.

Law Off. of Cary Scott Goldinger, P.C. v. Deluca · filed 2023-08-09(a)(8)

When opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the [*2]ground of lack of personal jurisdiction, a plaintiff "need only make a prima facie showing" that personal jurisdiction over the moving defendant exists ( Opticare Acquisition Corp. v Castillo , 25 AD3d 238, 243; see Lowy v Chalkable, LLC , 186 AD3d 590, 591).

To defeat a motion to dismiss for lack of personal jurisdiction under CPLR 3211(a)(8), a plaintiff need only make a prima facie showing that jurisdiction exists.

Vaval v. Stanco, LLC · filed 2023-09-20(a)(8)

However, to defeat a motion pursuant to CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction, a plaintiff "need only make a prima facie showing that personal jurisdiction exists" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 49).

Section 3211(a)(8) places on the plaintiff the burden of presenting sufficient evidence through affidavits and relevant documents to demonstrate personal jurisdiction.

Vasquez v. City of New York · filed 2024-04-30(a)(8)

"On a motion to dismiss pursuant to CPLR § 3211 (a) (8), the plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction" (Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485,486 [1st Dept 2017]).

On a pre-answer motion to dismiss under CPLR 3211(a)(7), a defendant prevails on the ground that a defamatory statement is true only when its truth can be established from the complaint alone.

Stega v. New York Downtown Hosp. · filed 2018-06-27(a)(7)

Certainly, the falsity of an allegedly defamatory statement is an element of any defamation claim, but on a pre-answer motion to dismiss a defendant will prevail on this ground only if the statement's truth may be established from the complaint alone.

Section 3211(a)(4) permits dismissal when another sufficiently similar action between substantially identical parties is pending and seeks substantially the same relief, and subsection (a)(8) permits dismissal for lack of personal jurisdiction.

Cooper v. Thao · filed 2018-06-27(a)(4), (a)(8)

"Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" ( DAIJ, Inc. v Roth, 85 AD3d 959, 959; see CPLR 3211[a][4]; Whitney v Whitney, 57 NY2d 731, 732; Mazzei v Kyriacou, 139 AD3d 823, 824). ... Thus, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against HSBC. ... Furthermore, insofar as the plaintiff acknowledges that Thao was never served with process, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Thao for lack of personal jurisdiction was properly granted ( see CPLR 306-b).

Section 3211(a)(4) permits dismissal when a prior pending action has substantially identical parties, sufficiently similar subject matter, and substantially the same relief.

Jaber v. Elayyan · filed 2019-01-09(a)(4)

Under CPLR 3211(a)(4), a court has " broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. ... Since there is no sufficiently substantial identity of parties and subject matter in the two actions, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him.

Section 3211(a)(4) gives courts broad discretion to dismiss an action when another pending action involves substantially identical parties, sufficiently similar claims, and substantially the same relief.

Mason ESC, LLC v. Michael Anthony Contr. Corp. · filed 2019-05-22(a)(4)

" Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same'" ( Cooper v Thao , 162 AD3d 980, 981, quoting DAIJ, Inc. v Roth , 85 AD3d 959, 959; see CPLR 3211[a][4]; Whitney v Whitney , 57 NY2d 731, 732).

CPLR 3211(a)(4) permits dismissal when another pending action involves substantially the same parties, claims, and relief.

Matter of Hirsch v. Beda · filed 2024-04-17(a)(4)

Pursuant to CPLR 3211(a)(4), "a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" ( JPMorgan Chase Bank, N.A. v Luxama , 172 AD3d 1341, 1341 [internal quotation marks omitted]; see Akter v Zara Realty Holding Corp. , 203 AD3d 791, 792). ... Here, while there was a substantial identity of the parties and this proceeding and the action pending in New Jersey arose from the same alleged series of wrongs, the relief sought was not the same or substantially the same ( see Matter of Spicer v Spicer , 162 AD3d 886, 887). Thus, dismissal of the family offense petition on the ground of a prior action pending was an improvident exercise of discretion ( see CPLR 3211[a][4]; Matter of Spicer v Spicer , 162 AD3d at 887; Swartz v Swartz , 145 AD3d 818; Gottlieb v Gottlieb , 294 AD2d 537).

CPLR 3211(a)(4) allows a court to dismiss an action when another pending action has substantially identical parties, sufficiently similar claims, and substantially the same relief, subject to the court's broad discretion.

Melis v. Blake Stone, LLC · filed 2024-05-15(a)(4)

"Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" ( DAIJ, Inc. v Roth , 85 AD3d 959, 959; see Whitney v Whitney , 57 NY2d 731, 732; Hempstead Hous. Auth. v Middle County Resources Mgt., Inc. , 216 AD3d 621, 622).

Section 3211(a)(4) allows a court to dismiss or stay an action when another action is pending between the same parties for the same cause of action in another court.

St. Paul Fire & Mar. Ins. Co. v. Getty Props. Corp. · filed 2024-06-26(a)(4)

CPLR 3211(a)(4) authorizes a court to dismiss or stay an action on the ground that there is another action pending between the same parties for the same cause of action in another court ( see Whitney v Whitney , 57 NY2d 731, 732; Seneca Specialty Ins. Co. v T.B.D. Capital, LLC , 143 AD3d 971, 972).

Section 3211(a)(1) allows dismissal when documentary evidence conclusively establishes a defense, and section 3211(a)(8) allows dismissal for lack of personal jurisdiction.

Lee v. Grimblat · filed 2024-06-27(a)(1) and (8)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered June 5, 2023, which granted defendants Rose Louisa Groen, Julie Renee Groen (together, Groen defendants), and Elisabeth Royer Grimblat's motion to dismiss the complaint against them pursuant CPLR 3211(a)(1) and (8), unanimously affirmed, without costs. ... Supreme Court properly granted the Groen defendants' motion to dismiss for lack of personal jurisdiction. ... In support of their motion to dismiss pursuant to CPLR 3211(a)(1), defendants submitted documentary evidence to show that the Mobile was consigned for sale by Frederique and sold before Frederique's death on December 26, 2017.

A defendant who asserts lack of standing as an affirmative defense in the answer preserves that defense, requiring the plaintiff to prove standing to obtain summary judgment.

Tokos v. County of Broome · filed 2023-11-30(e)

Defendants did properly assert standing as an affirmative defense in their answer, however, and plaintiffs were therefore required to prove their standing in order to succeed upon their summary judgment motion ( see CPLR 3211 [e]; McCormack v Maloney , 160 AD3d 1098, 1099 [3d Dept 2018], lv dismissed 32 NY3d [*2]1185 [2019]).

Section 3211 requires a defense of lack of standing to be raised in an answer or pre-answer motion to dismiss or it is waived.

JNG Constr., Ltd. v. Roussopoulos · filed 2019-03-27(a)(3), (e)

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss ( see CPLR 3211[a][3]; [e]; US Bank N.A. v Nelson , _____ AD3d _____, 2019 NY Slip Op 00494 [2d Dept 2019]; Citibank, N.A. v Gentile , 156 AD3d 859, 860; Gabel v Gabel , 104 AD3d 910, 911).

A defendant waives a standing defense by failing to raise it in the answer or a pre-answer motion to dismiss.

McLean v. Sachem Cent. Sch. Dist. · filed 2020-08-05(e)

Initially, the District waived its contention that the plaintiffs lacked standing to maintain this action by failing to assert that defense in its answer or in a pre-answer motion to dismiss ( see CPLR 3211[e]; Wells Fargo Bank Minn., N.A. v Mastropaolo , 42 AD3d 239, 242).

A defendant seeking dismissal for lack of standing under CPLR 3211(a)(3) must establish the plaintiff’s lack of standing prima facie.

Deutsche Bank Trust Co. Ams. v. Marous · filed 2020-08-19(a)(3)

Likewise, the defendant failed "to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see CPLR 3211[a][3]; Wells Fargo Bank, N.A. v LJ Equities II, LLC , 175 AD3d 1592, 1593).

A waiver of a standing defense under CPLR 3211(e) may be retracted by amending the pleading.

GMAC Mtge., LLC v. Coombs · filed 2020-11-25(e)

Accordingly, a waiver of the affirmative defense of standing pursuant to CPLR 3211(e) may be retracted through the amendment of a pleading pursuant to CPLR 3025 ( see e.g. U.S. Bank N.A. v Laino , 172 AD3d at 948; DLJ Mtge. Capital, Inc. v David , 147 AD3d at 1025; U.S. Bank, N.A. v Sharif , 89 AD3d at 724).

Under the law applicable to the orders at issue, CPLR 3211(e) required defendants to raise a standing defense in their answers or pre-answer motions to avoid waiver.

US Bank National Association v. Nelson · filed 2020-12-17(e)

Defendants failed to raise standing in their answers or in pre-answer motions as required by CPLR 3211 (e) and accordingly, under the law in effect at the time of the orders appealed from, the defense was waived (see Fossella v Dinkins, 66 NY2d 162, 167 [1985]).

Section 3211(e) waives a lack-of-standing defense when it is raised in neither the answer nor a pre-answer motion to dismiss.

Petkanas v. Petkanas · filed 2021-02-03(e)

We agree with the plaintiff's contention that the defendants waived the defense of lack of standing, as they failed to raise that affirmative defense in their answer or in a pre-answer motion for dismissal ( see CPLR 3211[e]; McLean v Sachem Cent. Sch. Dist. , 186 AD3d 470, 472; JNG Constr., Ltd. v Roussopoulos , 170 AD3d 1136, 1140).

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

Capital One, N.A. v. Ludden · filed 2021-03-10(a)(3)

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v McClendon , 138 AD3d 805, 806; see U.S. Bank N.A. v Clement , 163 AD3d 742, 743).

In a mortgage foreclosure action, failure to raise a standing defense in an answer or pre-answer motion does not waive it under CPLR 3211(e).

Wells Fargo Bank, N.A. v. Smith · filed 2021-08-04(e)

Contrary to the plaintiff's contention, the defendant did not waive a standing defense pursuant to CPLR 3211(e) by virtue of her failure to raise it in an answer or a pre-answer motion to dismiss ( see GMAC Mtge., LLC v Coombs , 191 AD3d 37, 46, 49; see also RPAPL 1302-a).

CPLR 3211(e) waives a lack-of-standing defense unless it is asserted in an answer or a pre-answer motion to dismiss.

Castaldi v. Syosset Cent. Sch. Dist. · filed 2022-03-02(e)

A defense of lack of standing is waived if not asserted in an answer or a pre-answer motion to dismiss ( see CPLR 3211[e]; McLean v Sachem Cent. Sch. Dist. , 186 AD3d 470, 472; JNG Constr., Ltd. v Roussopoulos , 170 AD3d 1136, 1140). Here, the Oyster Bay District waived the issue of the plaintiffs' standing by failing to assert lack of standing as an affirmative defense in its answer or to make a pre-answer motion to dismiss the complaint on the ground of lack of standing.

A standing defense is generally waived unless raised in an answer or pre-answer motion, but a defendant is not faulted for omitting it when the complaint gives no notice of a standing issue.

Pirro v. Board of Trustees of the Vil. of Groton · filed 2022-03-03(e)

Although the defense of standing will generally be waived if a defendant fails to raise it in an answer or pre-answer motion ( see CPLR 3211 [e]; US Bank N.A. v Nelson , 36 NY3d 998, 999 [2020]), the complaint provided no notice of a potential standing issue, as it explicitly stated that "[t]he actions of defendants violated the rights of . . . plaintiffs secured by the Constitution of the United States, including their rights of petition or association under the First Amendment" (emphasis added).

On a CPLR 3211(a)(3) motion to dismiss for lack of standing, the plaintiff must raise a question of fact about its standing to defeat the motion.

Wilmington Trust, N.A. v. Teo · filed 2022-04-06(a)(3)

In opposition, to defeat the motion, the plaintiff must raise a question of fact as to its standing ( see Wells Fargo Bank, N.A. v Smith , 197 AD3d 532). ... Accordingly, the Supreme Court properly granted that branch of NRTL's motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against it on the ground that the plaintiff lacked standing to commence the action.

A party does not waive a standing defense before filing a responsive pleading or a preanswer motion to dismiss.

Matter of Clifford · filed 2022-04-22(e)

Contrary to respondent's further contention, we conclude that the Estate did not waive its right to assert the issue of standing inasmuch as it has not yet filed a responsive pleading or a preanswer motion to dismiss ( see CPLR 3211 [e]; cf. Matter of Santoro v Schreiber , 263 AD2d 953, 953 [4th Dept 1999], appeal dismissed 94 NY2d 817 [1999]; see generally US Bank N.A. v Nelson , 36 NY3d 998, 999 [2020]).

A lack-of-standing defense is waived unless raised as an affirmative defense or in a pre-answer motion to dismiss.

107 S. Albany St., LLC v. Scott · filed 2022-12-22(a)(3), (e)

Moreover, although not argued by plaintiff, we note that the failure to assert lack of standing in either an affirmative defense or a pre-answer motion to dismiss constitutes a waiver thereof ( see CPLR 3211 [a] [3]; [e]; WFE Ventures, Inc. v GBD Lake Placid, LLC , 197 AD3d 824, 835 n 2 [3d Dept 2021]; Gilman v Abagnale , 235 AD2d 989, 990 [3d Dept 1997]).

Section 3211(e) treats a standing defense omitted from the answer and pre-answer motion as waived, but permits the waiver to be retracted on summary judgment when the opposing party has an opportunity to respond without prejudice.

Alford v. 72nd Tenants Corp. · filed 2024-03-12(e)

Defendants thus waived the affirmative defense of standing but retracted their waiver by asserting it for the first time in their motion for summary judgment.

Section 3211(a)(3) and (e) require a party to raise lack of standing in a pre-answer motion or answer or waive the defense.

Board of Mgrs. of Oceanview Condominium v. Riccardi · filed 2024-07-17(a)(3), (e)

To the extent that the defendant argues that the Board lacks standing, the defendant waived that affirmative defense ( see CPLR 3211[a][3]) by failing to assert it in his answer or to raise it in a pre-answer motion to dismiss ( see id. § 3211[e]; Rimberg v Horowitz , 206 AD3d 832, 834; Castaldi v Syosset Cent. Sch. Dist. , 203 AD3d 690, 691-692).

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

Kraus v. Credit Control Servs., Inc. · filed 2025-04-23(a)(3)

"Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing" ( Fossella v Adams , 225 AD3d 98, 108 [internal quotation marks omitted]).

A defendant waives a lack-of-capacity defense by failing to assert it in the answer.

Ditech Fin. LLC v. McGuire · filed 2025-05-15(e)

...commence this foreclosure action, defendants failed to assert plaintiffs lack of capacity as an affirmative defense in their answer and thus, this defense was waived (see CPLR 3211 [e]; see also U.S. Bank Trust N.A. vAuxila, 189 AD3d 1514, 1516, 139 NYS3d 236 [2d Dept 2020]; Household Bank (SB), N.A. v Mitchell, 12 AD3d 568, 785 NYS2d 116 [2d Dept 2004 ]).

CPLR 3211(g) does not provide for recovering damages, attorneys' fees, or costs by motion to dismiss.

315 W. 103 Enters. LLC v. Robbins · filed 2019-04-04(g)

Whereas "[a] defendant in an action involving public petition and participation . . . may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action" against him or her (Civil Rights Law § 70-a[1]), contrary to defendant's contention, that provision, which "is in derogation of the common law and must be strictly construed" ( Hariri v Amper , 51 AD3d 146, 151 [1st Dept 2008]), does not provide for such recovery by motion to dismiss ( id. at 150; CPLR 3211[g]; see Harris v Ward Greenberg Heller & Reidy LLP , 151 AD3d 1808, 1809 [4th Dept 2017] [holding that a motion to dismiss is not a pleading]).

Under CPLR 3211(b), a motion to dismiss affirmative defenses may be denied when the defenses could apply to some of the alleged defects.

Tribeca Space Mgrs., Inc. v. Tribeca Mews Ltd. · filed 2021-12-28(b)

However, the court properly denied plaintiff's motion to dismiss the ninth and tenth affirmative defenses, which may apply to patent and latent defects that are unrelated to Sponsor's alleged failure [*2]to meet its obligations to construct the building to code in conformity with plans and specifications , and to obtain a permanent certificate of occupancy.

Section 3211 permits dismissal of counterclaims or defenses when the pleading lacks a legally sufficient claim or defense, or when documentary evidence conclusively defeats the claim.

Shah v. Mitra · filed 2019-04-10(a)(7), (a)(1), and (b)

On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Wand, Powers & Goody, LLP v Yuliano , 144 AD3d 1017, 1018; see McKesson Medical-Surgical Minn. Supply, Inc. v Caremed Supplies, Inc. , 164 AD3d 1441, 1442; see also Leon v Martinez , 84 NY2d 83, 87-88). ... CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." ... "On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true" ( Wells Fargo Bank, N.A. v Rios , 160 AD3d at 913; see Bank of N.Y. v Penalver , 125 AD3d at 797; Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC , 78 AD3d at 748-749).

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 only when documentary evidence conclusively establishes a defense.

Jadidian v. Drucker · filed 2019-04-24(a)(7), (a)(1)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see CPLR 3026; Leon v Martinez , 84 NY2d 83, 87-88; Santaiti v Town of Ramapo , 162 AD3d 921, 924-925; Berlin v DeMarzo , 150 AD3d 1185). ... Dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; see Kolchins v Evolution Mkts., Inc. , 31 NY3d 100, 106; Leon v Martinez , 84 NY2d at 88).

Section 3211(b) permits a plaintiff to dismiss affirmative defenses that are without merit as a matter of law.

U.S. Bank N.A. v. Gonzalez · filed 2019-05-22(b)

We disagree with the Supreme Court's determination to deny those branches of the plaintiff's motion which were pursuant to CPLR 3211(b) to dismiss affirmative defenses one through five, and seven through eleven, as the plaintiff demonstrated that those defenses were without merit as a matter of law ( see AutoOne Ins. Co. v Eastern Is. Med. Care, P.C. , 141 AD3d 499, 501; Mazzei v Kyriacou , 98 AD3d 1088, 1089).

On a motion to dismiss an affirmative defense under CPLR 3211(b), the plaintiff bears a heavy burden to show that the defense lacks merit as a matter of law.

Alpha Capital Anstalt v. General Biotechnology Corp. · filed 2021-02-16(b)

When moving to dismiss an affirmative defense pursuant to CPLR 3211(b), "the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law" ( Granite State Ins. Co. v Transatlantic Reins. Co. , 132 AD3d 479, 481 [1st Dept 2015]).

A party moving under CPLR 3211(b) to dismiss an affirmative defense bears the burden of showing that the defense lacks merit as a matter of law.

Wright v. State of N.Y. · filed 2021-03-11(b)

Claimant, as the party seeking dismissal of the affirmative defenses ( see CPLR 3018 [b]), "bore the heavy burden of demonstrating that the defenses lacked merit as a matter of law" ( DeThomasis v Viviano , 148 AD3d 1338, 1339 [2017]; see CPLR 3211 [b]; New York Univ. v Continental Ins. Co. , 87 NY2d 308, 323 [1995]; Pugh v New York City Hous. Auth. , 159 AD3d 643, 643 [2018]; Van Wert v Randall , 100 AD3d 1079, 1081 [2012]).

CPLR 3211(b) permits dismissal of an affirmative defense that merely states legal conclusions without supporting facts.

Diaz v. 297 Schaefer St. Realty Corp. · filed 2021-06-16(b)

"[W]here affirmative defenses 'merely plead conclusions of law without any supporting facts,' the affirmative defenses should be dismissed pursuant to CPLR 3211(b)" ( Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC , 78 AD3d 746, 750, quoting Firemans Fund Ins, Co. v Farrell , 57 AD3d 721, 723).

Under CPLR 3211(b), an affirmative defense remains when factual issues bear on whether it applies.

Romero v. Valdez · filed 2021-10-14(b)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered February 9, 2021, which denied plaintiff's motion for partial summary judgment (CPLR 3212) and for dismissal of the comparative negligence and emergency doctrine affirmative defenses pursuant to CPLR 3211(b), unanimously affirmed, without costs. ... Plaintiff failed to establish that defendants' emergency affirmative defense should be dismissed. Issues of fact exist as to whether the apparent emergency situation was of the Valdez's own making and whether he was afforded little or no time to consider alternative courses of action ( see Powers v Kyong Kwan Min , 147 AD3d 401 [1st Dept 2017]; Richards , 172 AD3d 439). Issues of fact also exist as to defendants' comparative negligence affirmative defense, including whether plaintiff's car lights and/or hazard lights were on, whether plaintiff had available roadside warning devices such as flares or cones, and whether plaintiff could have pulled his car over to the right shoulder of the road nearer the slower lanes.

CPLR 3211(a)(1) permits dismissal only when documentary evidence conclusively refutes the allegations and establishes a defense; under CPLR 3211(a)(7), the court accepts pleaded facts as true and determines whether they fit a cognizable legal theory.

Interstate Home Loan Ctr., Inc. v. United Mtge. Corp. · filed 2022-06-08(a)(1) and (a)(7)

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations and conclusively establishes a defense to the cause of action as a matter of law ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326; Gruber v Donaldsons, Inc. , 201 AD3d 887, 888). ... On a motion to dismiss for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the pleading party the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d at 326; Leon v Martinez , 84 NY2d 83, 87; V. Groppa Pools, Inc. v Massello , 106 AD3d 722).

Under CPLR 3211(b), a plaintiff moving to dismiss an affirmative defense bears the burden of showing that the defense lacks merit as a matter of law.

Emigrant Bank v. Rosabianca · filed 2022-11-17(b)

"When moving to dismiss an affirmative defense pursuant to CPLR 3211(b), the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law ( Alpha Capital Anstalt v General Biotechnology Corp. , 191 AD3d 515, 515 [1st Dept 2021])."

Section 3211(b) permits dismissal of affirmative defenses when the defendant submits no evidence demonstrating their merit.

Rivercross Tenants' Corp. v. Kovach · filed 2023-01-24(b)

Defendant's affirmative defenses were correctly dismissed in the absence of any evidence submitted by defendant to demonstrate their merits (CPLR 3211[b]).

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

New Hackensack Realty, LLC v. Lawrence Dev. Realty, LLC · filed 2024-04-10(a)(1) and (7)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" ( Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. , 205 AD3d 714, 715). In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court is required to accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88).

Section 3211 requires a court reviewing a complaint to accept the alleged facts as true, give plaintiffs every favorable inference, and determine whether those facts fit a cognizable legal theory.

Deutsche Bank Natl. Trust Co. v. HSBC Fin. Corp. · filed 2024-05-01(a)(1) and (a)(7)

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

Section 3211(b) allows dismissal of an affirmative defense that is not stated, has no merit, or merely pleads legal conclusions without supporting facts.

Skonieczki v. Park Ave. Assoc. In Radiology, P.C. · filed 2024-05-02(b)

"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." ... "However, where affirmative defenses 'merely plead conclusions of law without any supporting facts,' the affirmative defenses should· be dismissed pursuant to CPLR 3211 (b)." ... As such, it is conclusory and subject to dismissal.

Section 3211(b) allows a party to move to dismiss one or more defenses when a defense is not stated or lacks merit.

South Brooklyn Ry. Co. v. Heung Man Lau · filed 2024-05-07(b)

Pursuant to CPLR 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." The movant bears the burden of demonstrating that the affirmative defense is without merit as a matter of law.

Section 3211(b) permits dismissal of an affirmative defense when the defense is without merit as a matter of law.

Yearwood v. New York City Tr. Auth. · filed 2024-05-08(b)

Furthermore, the plaintiff failed to meet his burden of establishing that the affirmative defense based on the emergency doctrine of the defendants NYCTA, MTA Bus, and MTA was "without merit as a matter of law" ( Edwards v Walsh , 169 AD3d 865, 870 [internal quotation marks omitted]; see Vargas v Town of Huntington , 206 AD3d 1034, 1036; Freder v Costello Indus., Inc. , 162 AD3d 984, 987-988). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss that affirmative defense.

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

Singh v. T-Mobile · filed 2024-11-13(a)(7), (a)(1)

"On a motion to dismiss pursuant to CPLR 3211(a)(7), a court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( A.D.E. Sys., Inc. v Quietside Corp. , 188 AD3d 762, 764).

Section 3211(a) allows a defendant to seek dismissal of a complaint before answering on specified grounds.

Glaubach v. Slifkin · filed 2019-04-17(a)

The evidence submitted in relation to the nominal defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint, like the evidence at issue in the companion appeal, conclusively demonstrated that prior to commencing this shareholders' derivative action, the plaintiff did not demand that the corporation's board of directors take specific action ( see Glaubach v Slifkin , ___ AD3d ___ [Appellate Division Docket No. 2016-01265; decided herewith]). Further, the plaintiff failed to adequately plead that such a demand would be futile ( see id. ). Accordingly, the Supreme Court should have granted the motion of the nominal defendants pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

When submissions on a CPLR 3211(a)(8) motion raise a factual dispute about service, a traverse hearing is warranted.

Matter of White v. Annucci · filed 2025-04-10(a)(8)

We find that the parties' respective submissions raise issues of fact as to whether petitioner fulfilled the service requirements of the order to show cause. Accordingly, a traverse hearing is warranted in this case ( see Matter of Elliott v Butler , 8 NY3d 972, 973 [2007]; Matter of Harrell v Fischer , 114 AD3d 1092, 1092-1093 [3d Dept 2014]; cf. Matter of Davila v Rodriguez , 232 AD3d 1184, 1185 [3d Dept 2024]; People ex rel. Curran v Keyser , 196 AD3d 980, 981 [3d Dept 2021], lv denied 37 NY3d 907 [2021]).

A motion to dismiss for lack of personal jurisdiction based on improper service becomes academic when the plaintiff validly serves the defendant within 120 days of commencing the action.

FBF Seatuck LLC v. Island Corporate Servs., LLC · filed 2024-12-02(a)(8)

ICS first moves to dismiss under CPLR 3211 (a) (8) for lack of personal jurisdiction due to improper service. ... Regardless of the merits of this contention, after ICS moved to dismiss, FBF re-served ICS through the Secretary of State under Limited Liability Company Law § 303—within 120 days of bringing this action. ... ICS does not dispute that this second service attempt was valid. Accordingly, the branch of the motion to dismiss the action for lack of personal jurisdiction is denied as academic.

When a defendant rebuts the presumption of proper service on a motion to dismiss for lack of personal jurisdiction, the court may require a traverse hearing before deciding the motion.

WealthUnion Ventures LLC v. Yan · filed 2024-11-26(a)(8)

With the presumption of proper service rebutted, a traverse hearing on the issue is warranted with regard to the December 18 Service (see Wells Fargo Bank, NA. v Jones, 139 AD3d 520, 523 [1st Dept 2016] [defendant was entitled to traverse hearing after rebutting plaintiffs affidavit of service).

A motion to dismiss for lack of personal jurisdiction may be denied without a traverse hearing when the defendant fails to rebut the presumption of proper service created by an affidavit of service.

HSBC Bank USA v. Gifford · filed 2024-02-08(a)(8)

Defendant's motion to dismiss for lack of personal jurisdiction was properly denied without the need for a traverse hearing.

Only the party allegedly improperly served may seek dismissal under CPLR 3211(a)(8) based on that service.

U.S. Bank N.A. v. Gotterup · filed 2022-03-16(a)(8)

However, Windward lacked standing to challenge whether Gotterup was properly served with process, since such a claim is personal in nature and may only be raised by the party allegedly improperly served ( see Rhoe v Reid , 166 AD3d 919, 922; Wells Fargo Bank, N.A. v Bachmann , 145 AD3d 712, 714).

Under CPLR 3211(a)(8), conclusory denials that fail to rebut the presumption of proper service do not warrant a hearing or dismissal for lack of personal jurisdiction.

OneWest Bank FSB v. Perla · filed 2021-12-29(a)(8)

However, Perla's conclusory averments that someone named "Dorren G. Manager [sic]" never worked at his office and that he did not know someone by that name, were insufficient to rebut the presumption of proper service ( see Nationstar Mtge., LLC v Kamil , 155 AD3d 966, 967; Wells Fargo Bank, N.A. v Decesare , 154 AD3d 717, 718; US Bank N.A. v Ramos , 153 AD3d 882, 884). Therefore, "a hearing, at which the burden shifted to [the plaintiff] to establish proper service by a preponderance of the evidence, was not warranted" ( Mileski v MSC Indus. Direct Co., Inc. , 159 AD3d at 693). Accordingly, the Supreme Court should have denied the branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Perla ( see Mileski v MSC Indus. Direct Co., Inc. , 159 AD3d at 691).

A court may deny a CPLR 3211(a)(8) motion without a service hearing when alleged discrepancies in the process server's affidavit are minor or insufficiently substantiated.

Green Tree Servicing, LLC v. Frantzeskakis · filed 2021-12-01(a)(8)

Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, and the Supreme Court should have denied that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction without a hearing ( see Wells Fargo Bank, N.A. v Decesare , 154 AD3d 717, 718).

Section 3211(a)(8) permits dismissal when the court lacks personal jurisdiction over the defendant.

HMC Assets, LLC v. Dhanani · filed 2019-06-05(a)(8)

Under these circumstances, the presumption of proper service was rebutted and an evidentiary hearing was required ( see Federal Natl. Mtge. Assn. v Alverado , 167 AD3d at 988; Mizerek v Rosenfeld , 162 AD3d 1005, 1006; FV-1, Inc. v Reid , 138 AD3d 922, 924; Deutsche Bank Natl. Trust Co. v Pestano , 71 AD3d 1074, 1075). Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and thereafter for a new determination of the defendant's motion to vacate the orders of reference and the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against her.

Section 3211(a)(8) permits a named defendant to challenge personal jurisdiction, and specific sworn facts denying service can require a hearing.

Deutsche Bank Natl. Trust Co. v. Patrick · filed 2019-06-19(a)(8)

Nevertheless, so long as Patrick remains a named defendant in this action, he has the right to challenge the court's jurisdiction over him pursuant to CPLR 3211(a)(8). "The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process" ( Washington Mut. Bank v Murphy , 127 AD3d 1167, 1173). "Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v Chaplin , 65 AD3d 588, 589). Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing ( see U.S. Bank, N.A. v Tauber , 140 AD3d 1154, 1155).

CPLR 3211(a)(8) requires an evidentiary hearing when a sworn, fact-specific denial of service rebuts the presumption of proper service.

Caliber Home Loans, Inc. v. Silber · filed 2019-06-19(a)(8)

However, "[w]here a defendant submits a sworn denial of receipt of process containing specific facts [*2]to rebut the statements in the process server's affidavit, the presumption of proper service is rebutted and an evidentiary hearing is required" ( Gray v Giannikios , 90 AD3d 836, 837; see HSBC Bank USA, N.A. v Archibong , 157 AD3d at 663; Rosemark Contrs., Inc. v Ness , 149 AD3d at 1116; Wachovia Bank, N.A. v Greenberg , 138 AD3d 984, 985).

Under CPLR 3211(a)(8), a defendant challenging service must rebut the process server's prima facie showing with a sworn denial containing specific facts.

Federal Natl. Mtge. Assn. v. Lakas · filed 2019-09-11(a)(8)

The process server's affidavit constituted prima facie evidence of proper service on the appellant ( see Deutsche Bank Natl. Trust Co. v O'King , 148 AD3d 776). In order to overcome the presumption raised by the process server's affidavit, the appellant was required to submit a sworn denial of receipt containing specific facts to refute the statements contained in the affidavit of service ( see U.S. Bank, N.A. v Peralta , 142 AD3d 988).

When a defendant supplies specific sworn facts rebutting the presumption of proper service, the court must hold a hearing before deciding a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction.

Wells Fargo Bank, N.A. v. Starr · filed 2019-11-13(a)(8)

The defendant demonstrated her entitlement to a hearing on the issue of service through her affidavit, in which she provided specific facts sufficient to rebut the presumption of proper service ( see HSBC Bank USA, N.A. v Archibong , 157 AD3d at 663; Wachovia Bank, N.A. v Greenberg , 138 AD3d at 985; Wells Fargo Bank, N.A. v Christie , 83 AD3d at 825). Thus, a hearing is required. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.

On a motion to dismiss for lack of personal jurisdiction, a specific, detailed sworn challenge to a process server’s affidavit requires the plaintiff to prove jurisdiction at a hearing by a preponderance of the evidence.

Nationstar Mtge., LLC v. Balsamo · filed 2020-10-07(a)(8)

However, in support of his cross motion, the defendant submitted an affidavit containing a specific and detailed contradiction of the allegations in the process server's affidavit, which shifted the burden of proof to the plaintiff to establish jurisdiction at a hearing by a preponderance of the evidence ( see Citibank, N.A. v Balsamo , 144 AD3d 964, 965; Matter of MBNA Am. Bank, N.A. v Novins , 123 AD3d 832).

On a CPLR 3211(a)(8) motion challenging service, a detailed sworn denial can rebut the presumption of proper service and require a hearing.

Turner v. Sideris · filed 2020-10-14(a)(8)

However, a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit generally rebuts the presumption of proper service and necessitates a hearing ( see Federal Natl. Mtge. Assn. v Alverado , 167 AD3d 987, 988; Deutsche Bank Natl. Trust Co. v Stolzberg , 165 AD3d 624, 625). In this case, the affidavits submitted by the defendant rebutted the presumption of proper service and necessitated a hearing on the issue of service.

On a motion to dismiss for lack of personal jurisdiction, a specific sworn denial that rebuts the process server’s affidavit requires the plaintiff to prove jurisdiction at a hearing by a preponderance of the evidence.

US Bank N.A. v. Joseph · filed 2021-01-20(a)(8)

"Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service, but when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing" ( Wells Fargo Bank, NA v Spaulding , 177 AD3d 817, 819 [citation and internal quotation marks omitted]; see HSBC Bank USA, N.A. v Assouline , 177 AD3d 603, 604; Bank of N.Y. Mellon v Ortiz , 174 AD3d 489, 490).

A factually detailed sworn denial that rebuts the presumption of proper service requires a hearing before the court decides a motion to dismiss for lack of personal jurisdiction.

Christiana Trust v. Mauro · filed 2021-02-10(a)(8)

Under these circumstances, the submissions were sufficient to rebut the presumption of proper service created by the process server's affidavits of service, and to necessitate a hearing ( see David v Singletary , 180 AD3d at 995, Wells Fargo Bank, NA v Tobing , 175 AD3d 745, 748).

On a motion to dismiss for lack of personal jurisdiction, conflicting evidence about service of process requires a traverse hearing.

Estrella v. East Tremont Med. Ctr. · filed 2021-04-22(a)(5)

We remand the matter for determination of the remaining branch of defendants' motion to dismiss pursuant to CPLR 3211(a)(5) for lack of personal jurisdiction, which the court deemed moot and did not address. While plaintiff's affidavits of service constituted prima facie evidence of proper service upon defendants, the affidavits of Randy Pierantoni and Guy Renvoize, M.D., raised questions of fact regarding service of process that must be resolved at a traverse hearing ( see Bevilacqua v Bloomberg, L.P. , 70 AD3d 411, 412 [1st Dept 2010]).

A defendant seeking a hearing on a CPLR 3211(a)(8) motion must give specific facts that rebut the process server's affidavit of service.

Bank of N.Y. Mellon Trust Co., N.A. v. Kahn · filed 2021-03-31(a)(8)

The affidavits of the defendants submitted in support of their motion to dismiss were not sufficient to rebut the process server's affidavits or to warrant a hearing on the issue ( see Flushing Bank v Sabi , 182 AD3d at 594; Deutsche Bank Natl. Trust Co. v Benitez , 179 AD3d at 892).

On a motion to dismiss for lack of personal jurisdiction, the party asserting jurisdiction must prove it by a preponderance of the credible evidence.

Wilmington Trust Co. v. Gewirtz · filed 2021-04-28(a)(8)

"At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence" ( Grand Pac. Mtge. Corp. v Pietranski , 175 AD3d 1503, 1505). ... As the plaintiff established by a preponderance of the credible evidence that personal jurisdiction was acquired over the defendants, the Supreme Court should have denied the defendants' motion to dismiss the complaint insofar as asserted against them ( see Wells Fargo Bank, N.A. v Cherot , 102 AD3d 768) and decided the plaintiff's motion, inter alia, for summary judgment on the merits instead of, in effect, denying it as academic.

A hearing on a CPLR 3211(a)(8) service challenge is warranted when defendants' affidavits give detailed and specific contradictions of the affidavits of service.

Chase Home Fin., LLC v. Kahana · filed 2021-09-22(a)(8)

Here, a hearing was warranted based on the defendants' affidavits, which contained detailed and specific contradictions of the allegations in the affidavits of service ( see Banker's Trust Co. of Cal. v Tsoukas , 303 AD2d 343, 344).

A court must hold a hearing on a CPLR 3211(a)(8) motion when sworn evidence sufficiently rebuts the process server’s showing of valid service.

U.S. Bank N.A. v. Sodhi · filed 2021-11-24(a)(8)

However, the defendants' affidavits, along with those of their witnesses, were sufficient to rebut the process server's affidavits of service as to both of the defendants. Additionally, the defendants submitted material that called into question the veracity of the process server ( see US Bank N.A. v Joseph , 190 AD3d at 880). Under the circumstances of this case, a hearing is required on the issue of whether the defendants were properly served with process.

A motion to dismiss for lack of personal jurisdiction may be denied without a service hearing when the defendant fails to raise an issue of fact about the validity of service.

Bank of N.Y. Mellon v. Blackwood · filed 2022-11-30(a)(8)

The defendants did not raise an issue of fact sufficient to warrant a hearing to determine the validity of service of process. The Supreme Court properly denied that branch of their motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them, although a hearing prior to that determination was not warranted under the circumstances of this case ( see Green Tree Servicing, LLC v Frantzeskakis , 200 AD3d at 655).

A motion to dismiss for lack of personal jurisdiction requires an evidentiary hearing when a specific sworn denial of service rebuts the process servers' affidavits.

Aikens v. Kouchnerova · filed 2023-06-14(a)(8)

However, since the defendants' sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers' affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required ( see Deutsche Bank Natl. Trust Co. v Simpson , 208 AD3d at 1307; PennyMac Corp. v Barbosa , 189 AD3d 863). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the defendants were properly served with process at both the New York and Florida properties, and for a new determination thereafter of the defendants' motion, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

A court must hold a hearing to determine whether service was valid before deciding a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction when the service evidence is disputed.

HSBC Bank USA, N.A. v. Rini · filed 2023-07-19(a)(8)

Here, the Supreme Court erred in determining that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process ( see Jampolskaya v Ilona Genis, MD, P.C. , 205 AD3d at 786).

A motion to dismiss for lack of personal jurisdiction may be denied without a hearing when the defendant fails to rebut the presumption of proper service.

Deutsche Bank Natl. Trust Co. v. Moses · filed 2024-01-24(a)(8)

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, that branch of her cross-motion which was pursuant to CPLR 5015(a)(4) and CPLR 3211(a)(8) to vacate the order of reference and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. ... Here, the defendant's submissions were insufficient to defeat the presumption of proper service.

A CPLR 3211(a)(8) motion for lack of personal jurisdiction fails when proof of service establishes a presumption of proper service that the defendant does not contest.

O'Hara v. Bond · filed 2024-11-26(a)(8)

Defendants' opposition does not ... address, let alone ... contest, the presumption of ... of proper service. ... Accordingly, the branch of ... Defendants' motion seeking ... to dismiss ... the complaint ... against BB LLC ... for lack ... jurisdiction is denied.

Section 3211(a)(8) permits dismissal when service of process is defective and no extension of time to serve is warranted.

Gengo v. Storms · filed 2019-04-03(a)(8)

Both of the plaintiff's attempts at service were defective. ... Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendant's motion which was to dismiss the complaint and to deny that branch of the plaintiff's cross motion which was to extend the time to serve process.

Section 3211(a)(8) allows dismissal for lack of personal jurisdiction, but a defendant must give specific facts rebutting a process server’s affidavit to require an evidentiary hearing.

Bayview Loan Servicing, LLC v. Ashkenazi · filed 2024-12-24(a)(8)

Here, the Supreme Court properly denied dismissal of the complaint insofar as asserted against the defendant pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction ( see Deutsche Bank Natl. Trust Co. v Moses , 223 AD3d 784, 785; City of New York v Miller , 72 AD3d 726, 727). ... "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a [*2]process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" ( City of New York v Miller , 72 AD3d at 727).

On a motion to dismiss for lack of personal jurisdiction, a conclusory denial of service that fails to rebut the process server's affidavit does not warrant a hearing or dismissal.

Harvey v. Usukumah · filed 2025-05-21(a)

Therefore, because the defendants' mother's affidavit was insufficient to rebut the presumption of proper service, a hearing was not warranted ( see OneWest Bank FSB v Perla , 200 AD3d at 1056). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint ( see see OneWest Bank FSB v Perla , 200 AD3d at 1056).

CPLR 3211(a)(8) permits dismissal for lack of personal jurisdiction when service on multiple defendants is defective because only one set of commencement papers was mailed to them.

Sellersfunding Intl. Portfolio Ltd. v. Major & Minor Detailz Inc. · filed 2025-07-21(a)(8)

Undisputably, Quispe mailed only one set of commencement papers to the same address to serve process upon the three defendants named in the summons and complaint. Consequently, the service was defective as against all three defendants ( Discover Bank v Fortier , 31 Misc 3d 394, 396 [Sup Ct, Rockland County 2011] ; see Coolidge Capital LLC v Marine Plus LLC, 81 Misc 3d 1206[A] (Sup Ct, Kings County 2023). As the movants correctly contended, the Court lacked personal jurisdiction over them. Their motion seeking dismissal of the action pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction is granted.

When evidence rebuts the presumption of proper service, the court must hold a hearing before determining a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction.

Bank of N.Y. Trust Co., N.A. v. Herbin · filed 2025-09-10(a)(8)

Since the defendant's submissions rebutted the presumption of proper service established by the process server's affidavit, the Supreme Court should have directed a hearing to determine whether personal jurisdiction was acquired over the defendant ( see Citimortgage, Inc. v Behrman , 189 AD3d 1159, 1161; Citimortgage, Inc. v Erani , 180 AD3d 641, 643).

On a motion to dismiss for lack of personal jurisdiction under § 3211(a)(8), the petitioner bears the burden of showing proper service of process.

Matter of Nicholas v. Martuscello · filed 2026-01-15(a)(8)

It is the petitioner's burden on a motion to dismiss pursuant to CPLR 3211 (a) (8) to demonstrate that proper service of process was made and, "because service of process is necessary to obtain personal jurisdiction over [respondents/]defendants, courts require strict compliance with the statutory methods of service" ( Cedar Run Homeowners' Assn., Inc. v Adirondack Dev. Group, LLC , 173 AD3d at 1330 [internal quotation marks, brackets and citation omitted]).

Under CPLR 3211(a)(1) and (7), sufficiently pleaded allegations withstand dismissal when the submitted documents do not conclusively refute them.

Gibson & Cushman Contr., LLC v. Cook Maran & Assoc., Inc. · filed 2020-06-17(a)(1), (7)

Here, contrary to the defendant's contention that both the allegations in the complaint and the documentary evidence, including the subject insurance policies, submitted in support of dismissal establish that each of the plaintiffs received exactly what they asked for from the defendant—a commercial general liability insurance policy with a premium based on gross revenue—the complaint sufficiently alleges that the procured policies, both of which included a minimum earned premium provision, did not comport with the plaintiffs' request, and the documentary evidence does not conclusively establish otherwise.

Section 3211(a)(1) permits dismissal when documentary evidence utterly refutes the allegations and conclusively establishes a defense, while section 3211(a)(7) requires accepting pleaded facts as true and denying dismissal unless no cause of action is stated.

Board of Mgrs. of 285 Driggs Ave. Condominium v. 285 Driggs Ave., LLC · filed 2019-06-12(a)(1) and (7)

A motion pursuant to CPLR 3211(a)(1) to dismiss causes of action based upon [*2]documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Hartnagel v FTW Contr. , 147 AD3d 819, 820; see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326). "To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity'" ( Matter of Koegel , 160 AD3d 11, 20-21, quoting Fontanetta v John Doe 1 , 73 AD3d 78, 86). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Matter of Koegel , 160 AD3d at 21 [internal quotation marks omitted]). However, affidavits are not considered documentary evidence ( see Hartnagel v FTW Contr. , 147 AD3d at 820; Fontanetta v John Doe 1 , 73 AD3d at 86). "When determining a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory, and may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Gaskin v Harris , 98 AD3d 941, 942-943 [citations and internal quotation marks omitted]; see Leon v Martinez , 84 NY2d 83, 88). Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action ( see Lawrence v Graubard Miller , 11 NY3d 588, 595; Hartnagel v FTW Contr. , 147 AD3d at 821; Sokol v Leader , 74 AD3d at 1182). "[A] motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" ( Sokol v Leader , 74 AD3d at 1182, quoting Guggenheimer v Ginzburg , 43 NY2d at 275). Here, the second third-party complaint, together with an affirmation from Tyrnauer, sufficiently alleged causes of action for common-law indemnification and contribution against Mayer personally ( see Gaskin v Harris , 98 AD3d at 943; Dollard v WB/Stellar IP Owner, LLC , 96 AD3d 533, 533-534).

On a motion under CPLR 3211(a)(7), courts presume pleaded facts true and give the plaintiff every favorable inference, except where allegations are legal conclusions, inherently incredible, or unequivocally contradicted by documentary evidence.

Landmark Ventures, Inc. v. InSightec, Ltd. · filed 2020-01-14(a)(7)

The court applied the correct standard in deciding the motions under CPLR 3211(a)(7), i.e., presuming the facts alleged are true and according the plaintiff every favorable inference, unless the allegations actually constitute legal conclusions or are inherently incredible or unequivocally contradicted by documentary evidence ( Leder v Spiegel , 31 AD3d 266 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied sub nom Spiegel v Rowland , 552 US 1257 [2008]).

On a motion to dismiss under CPLR 3211(a)(7), courts accept the complaint's factual allegations as true and give plaintiffs every possible favorable inference.

Elizabeth Votsis & Crave L&D, LLC v. ADP, LLC · filed 2020-10-02(a)(7)

Accepting as true the facts alleged in the amended complaint, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7), and according plaintiffs the benefit of every possible favorable inference ( see generally Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Walden Bailey Chiropractic, P.C. v Geico Cas. Co. , 173 AD3d 1806, 1806 [4th Dept 2019]), we agree with plaintiffs that Supreme Court erred in dismissing their first cause of action, for libel and defamation based on a theory of respondeat superior liability, against ADP.

A motion to dismiss under CPLR 3211(a)(1) and (7) must be denied when the pleadings sufficiently allege a claim and the documentary evidence does not conclusively refute it.

First Mercury Ins. Co. v. Preferred Contrs. Ins. Co. Risk Retention Group, LLC · filed 2021-01-21(a)(1) and (7)

Order, Supreme Court, New York County (Alan C. Marin, J.), entered December 6, 2019, which granted the motion of defendant Certain Underwriters at Lloyd's, London (Lloyd's) to dismiss the complaint as against it pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, with costs, and the motion denied. ... At this stage, the pleadings are sufficient to allege, and the documentary evidence does not conclusively refute, that Lloyd's named insured proximately caused the underlying accident, and thus that under the policy language ( see Burlington Ins. Co. v NYC Tr. Auth. , 29 NY3d 313, 322 [2017]), there is a reasonable possibility of coverage that could trigger at least a duty to defend ( see BP A.C. Corp. v One Beacon Ins. Group , 8 NY3d 708, 714 [2007]).

Section 3211(a)(1) requires documentary evidence to conclusively defeat the plaintiff’s allegations; when evidentiary materials are considered under (a)(7), dismissal requires the absence of a significant dispute over a material fact.

Louzon v. Gentry Apts., Inc. · filed 2021-02-10(a)(1), (a)(7)

Here, Gentry's documentary evidence did not utterly refute the plaintiffs' allegations or conclusively establish a defense as a matter of law ( see CPLR 3211[a][1]). Moreover, the evidentiary materials submitted by Gentry did not, as a matter of law, resolve the parties' factual disputes such that it could be said that the allegations in the complaint were not facts at all ( see CPLR 3211[a][7]).

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

Muller v. Schecter · filed 2021-05-26(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every favorable inference ( see Leon v Martinez , 84 NY2d 83, 87-88; Murphy v Department of Educ. of the City of N.Y. , 155 AD3d 637, 638).

CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the plaintiff's allegations and conclusively establishes a defense; under CPLR 3211(a)(7), dismissal depends on whether the alleged facts fit a cognizable legal theory.

Garcia v. Shah · filed 2022-06-01(a)(1), (a)(7)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may appropriately be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ... Accordingly, the Supreme Court properly denied Occidental's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the third-party complaint.

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

Board of Mgrs. of Brightwater Towers Condominium v. Vitebsky · filed 2022-07-27(a)(7)

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference" ( Fon v Krowe , 204 AD3d 889, 890 [internal quotation marks omitted]).

On a CPLR 3211(a)(7) motion, the court must construe the complaint liberally, accept its alleged facts as true, give the plaintiff every favorable inference, and decide whether those facts fit a cognizable legal theory.

Iovino v. Deutsche Bank Natl. Trust Co. · filed 2023-06-21(a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction ( see id. § 3026). 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 Sokoloff v Harriman Estates [*2]Dev. Corp. , 96 NY2d 409, 414; Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211(a)(1) requires documentary evidence to conclusively establish a defense, while CPLR 3211(a)(7) tests whether the alleged facts state a cognizable cause of action.

HSBC Bank USA, N.A. v. Alexander · filed 2023-11-22(a)(1) and (a)(7)

'To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law' ( J.P. Morgan Mtge. Acquisition Corp. v South Homes, Inc. , 189 AD3d 1381, 1382, quoting Gould v Decolator , 121 AD3d 845, 847).

Section 3211 permits dismissal based on conclusive documentary evidence, insufficient pleadings, or when essential opposition facts may exist but cannot yet be stated.

Privlege Underwriters Reciprocal Exchange v. SBP N.Y., LLC · filed 2024-07-01(a)(1), (a)(7), (d)

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

CPLR 3211(a)(7) requires courts to construe pleadings liberally, accept alleged facts as true, and give plaintiffs every favorable inference, while disregarding bare legal conclusions.

Abbas v. Richmond Univ. Med. Ctr. · filed 2024-07-31(a)(7)

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; 106 N. Broadway, LLC v Lawrence , 189 AD3d 733, 736).

CPLR 3211(a)(7) requires accepting pleaded facts as true and CPLR 3211(a)(1) requires documentary evidence to utterly refute the allegations and conclusively establish a defense.

Provident Bank v. Maze Condos, LLC · filed 2024-11-06(a)(1) and (a)(7)

On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see HSBC Bank USA, N.A. v Alexander , 221 AD3d 865, 868). ... "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" ( HSBC Bank USA, N.A. v Alexander , 221 AD3d at 867 [internal quotation marks omitted]). ... Here, the one-page financial statement of unknown origin submitted by the defendants in support of their motion does not constitute documentary evidence within the intendment of CPLR 3211(a)(1) ( see Pergament v Government Empls. Ins. Co. ["GEICO"] , 225 AD3d 799, 801; Fontanetta v John Doe I , 73 AD3d 78, 87).

Section 3211(a)(7) does not permit dismissal based on evidence that merely raises factual questions and fails to show that the plaintiff has no cause of action.

Kallo v. Kane St. Synagogue · filed 2025-08-06(a)(7)

Here, Bell's declaration, which merely raised questions of fact with regard to the plaintiff's allegations set forth in the amended complaint, was insufficient to establish the defendants' entitlement to dismissal pursuant to CPLR 3211(a)(7), as it failed to demonstrate that the plaintiff had no cause of action ( see generally Schwartz v Fallah , 230 AD3d at 1264).

Section 3211 permits dismissal based on documentary evidence or failure to state a cause of action and requires liberal construction of the pleading.

Qureshi v. Vital Transp., Inc. · filed 2019-06-19(a)(1) and (a)(7)

A defendant may move to dismiss one or more causes of action, inter alia, on the ground that a defense is founded upon documentary evidence (CPLR 3211[a][1]) or the pleading fails to state a cause of action (CPLR 3211[a][7]). On a motion to dismiss pursuant to CPLR 3211(a), the pleading must be afforded a liberal construction and the court must "accept the facts as [*2]alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88; see Goshen v Mutual Life Ins. Co. of N. Y. , 98 NY2d 314, 326).