N.Y. C.P.L.R. § 3211

On a motion to dismiss under § 3211, the court accepts the complaint's allegations as true.

The Ideal You Weight Loss Ctr., LLC v. Zillioux · filed 2019-07-31

We agree with plaintiff that, accepting the allegations in the third-party complaint as true, as we must on a motion to dismiss pursuant to CPLR 3211 ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), defendants' use of the idealbuf.com and idealbuffalo.com domain names could be misleading and thus constitute unfair competition under the statute ( see OBH, Inc. v Spotlight Magazine, Inc. , 86 F Supp 2d 176, 180, 196 [WD NY 2000]).

Under CPLR 3211(a)(7), a complaint survives dismissal when its allegations state a cognizable cause of action; under CPLR 3211(a)(1), documentary evidence must utterly refute those allegations to warrant dismissal.

Matter of Valderrama · filed 2020-06-10(a)(1), (a)(7)

The seller was therefore not entitled to dismissal of the intervenor complaint pursuant to CPLR 3211(a)(7). Further, the limited documents submitted did not utterly refute the allegations of the intervenor complaint. Therefore, the seller was not entitled to dismissal of the intervenor complaint pursuant to CPLR 3211(a)(1).

CPLR 3211(a)(7) requires courts to construe a complaint liberally and accept its allegations as true, while (a)(1) permits dismissal based on documentary evidence only when it conclusively establishes a defense.

Lewis & Murphy Realty, Inc. v. Colletti · filed 2020-10-07(a)(1), (a)(7)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the allegations of the complaint as true, and provide the plaintiff the benefit of every possible favorable inference ( see Leon v Martinez , 84 NY2d 83, 87; Guggenheimer v Ginzburg , 43 NY2d 268, 275). ... A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law ( see 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co. , 127 AD3d 850, 851).

Section 3211(a)(7) requires courts to accept pleaded facts as true and give plaintiffs every favorable inference; under (a)(1), documentary evidence supports dismissal only if it utterly refutes the allegations and conclusively establishes a defense.

A.D.E. Sys., Inc. v. Quietside Corp. · filed 2020-11-12(a)(1), (a)(7)

However, the Supreme Court should not have granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action to recover damages for breach of the implied covenant of good faith and fair dealing and unjust enrichment. 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 ( see Leon v Martinez , 84 NY2d 83, 87-88). Additionally, in considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), "the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v Decolator , 121 AD3d 845, 847; see Leon v Martinez , 84 NY2d at 88).

Under CPLR 3211(a)(1) and (a)(7), dismissal is unwarranted when defendants fail to utterly refute the plaintiff’s factual allegations and conclusively establish a defense as a matter of law.

Chester County Empls. Retirement Fund v. Alnylam Pharms., Inc. · filed 2021-04-29(a)(1), (a)(7)

Defendants have failed to utterly refute plaintiff's factual allegations and conclusively establish a defense to the asserted claims as a matter of law (CPLR 3211[a][1]; CPLR 3211[a][7]).

On a motion to dismiss under CPLR 3211(a)(1) and (7), the court accepts the plaintiff's allegations as true and considers whether documentary evidence conclusively refutes them.

Wilson v. Tully Rinckey PLLC · filed 2021-12-23(a)(1), (a)(7)

Accepting plaintiff's averments and allegations as true ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc. , 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them ( see New York State Workers' Compensation Bd. v Program Risk Mgt., Inc. , 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim ( see Snyder v Brown Chiari, LLP , 116 AD3d 1116, 1117 [2014]; Soule v Lozada , 232 AD2d 825, 825 [1996]).

Under CPLR 3211(a)(1) and (a)(7), factual allegations can support a claim that the complaint does not explicitly name when documentary evidence fails to utterly refute those allegations.

Hahn v. Stone House Props. LLC · filed 2022-03-08(a)(1), (a)(7)

Although the complaint does not explicitly articulate a cause of action for breach of fiduciary duty, such a cause of action is manifest in its factual allegations, and the documentary evidence fails to utterly refute those allegations ( see Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]; Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Section 3211(a)(1) permits dismissal based on documentary evidence conclusively establishing a defense, while section 3211(a)(7) permits dismissal when a pleading fails to state a cause of action.

Baxter St. Condominium v. LPS Baxter Holding Co., LLC · filed 2022-05-31(a)(1), (a)(7)

Supreme Court correctly denied LPS's motion to dismiss, since plaintiff adequately pleaded its causes of action and LPS did not submit documentary evidence conclusively establishing a defense as a matter of law (CPLR 3211[a][1], [7]; see Goshen v Mut. Life Ins. Co. of New York , 98 NY2d 314, 326 [2002]; Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977]).

Section 3211(a)(7) permits dismissal when the plaintiff has no cause of action, while (a)(1) permits dismissal when documentary evidence conclusively resolves all factual issues and disposes of the claims.

Pickard v. Campbell · filed 2022-07-08(a)(1), (a)(7)

A motion pursuant to CPLR 3211 (a) (7) will be granted if the plaintiffs do not have a cause of action ( see id. at 88), and a motion pursuant to CPLR 3211 (a) (1) will be granted if "the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiffs'] claim[s]" ( Baumann Realtors, Inc. v First Columbia Century-30, LLC , 113 AD3d 1091, 1092 [4th Dept 2014] [internal quotation marks omitted]).

Section 3211(a)(1) permits dismissal when documentary evidence conclusively defeats the allegations, while section 3211(a)(7) requires the court to accept pleaded facts as true and draw favorable inferences when deciding whether they state a claim.

1650 Broadway Assoc., Inc. v. Sturm · filed 2024-04-04(a)(1), (a)(7)

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint or petition on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's or petitioner's allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]). On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff or petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Breytman v Olinville Realty, LLC , 54 AD3d 703, 703—704 [2d Dept 2008], lv dismissed 12 NY3d 878 [2009]). Plaintiffs sufficiently pleaded causes of action for accounting malpractice and aiding and abetting fraud, which are not utterly refuted by the documentary evidence.

On a § 3211 motion to dismiss, the court treats the petition’s allegations as true, gives the petitioner every reasonable inference, and considers whether the alleged facts fit a cognizable legal theory.

Sin Hang Lau v. Yun He Zheng · filed 2025-01-02(a)(1), (a)(7)

Given that Petitioner has moved to amend their petition in an attempt to resolve all of the factual issues as a matter of law, ( Kolchins v. Evolution Mkts., Inc. , 31 NY3d 100, 106 [2018]); and that the Court must deem the allegations of the petition as true and construe them in Petitioner's favor, affording Petitioner the benefit of "every reasonable inference," ( Cortlandt St. Recovery Corp. v. Bonderman , 31 NY3d 30, 38 [2018]), this Court finds that Respondent has failed to meet its burden under both sections of CPLR §3211. Petitioner has, in fact, presented facts that fit a cognizable legal theory.

On a CPLR 3211(a)(7) motion, courts accept the pleaded facts as true and give the plaintiff favorable inferences when deciding whether the complaint states a claim.

25-86 41st St., LLC v. Guzman · filed 2025-01-08(a)(7)

Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint alleged sufficient facts from which it may be inferred that Green knowingly participated in a scheme to gain entry into the plaintiff's apartment without its consent, interfere with its right to use the apartment, and damage its property ( see Levin v Kitsis , 82 AD3d 1051, 1052).

On a motion to dismiss under CPLR 3211(a)(1) and (7), the court accepts the petition’s allegations as true and draws reasonable inferences in the petitioner’s favor.

Emerald Green Phase II L.P. v. Rivera · filed 2025-06-05(a)(1), (7)

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

Section 3211(a)(7) requires courts to accept pleaded facts as true and draw favorable inferences, while section 3211(a)(1) permits dismissal only when documentary evidence conclusively establishes a defense as a matter of law.

N.I. v. City of New York · filed 2025-09-10(a)(1), (a)(7)

On a motion to dismiss pursuant to CPLR 3211(a)(7) "[w]e accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v Martinez , 84 NY2d 83, 87-88 [citations omitted]).

CPLR 3211(a) allows a defendant to move to dismiss before answering, and accepting an untimely pre-answer motion can preclude entry of a default judgment.

Esposito v. Larig · filed 2019-07-10(a)

In light of the Supreme Court's unchallenged decision, in effect, to accept the defendants' untimely pre-answer motion to dismiss and determine part of the motion on the merits, the court should have denied that branch of the plaintiff's cross motion which was for leave to enter a default judgment on the second, third, fourth, and fifth causes of action ( see Lolly v Brookdale Hosp. Med. Ctr. , 37 AD3d 428).

A motion to dismiss made after the time to answer has lapsed is untimely unless the movant obtains an extension.

Old Republic Natl. Title Ins. Co. v. 1152 53 Mgt., LLC · filed 2024-05-08(e)

As the plaintiff correctly contends, Salamon's motion was untimely, since it was not made until after the time to serve an answer had lapsed ( see id . § 3211[e]), and Salamon failed to request an extension of time to either serve an answer or move to dismiss ( see id . § 2004).

Section 3211(a) allows a defendant to raise listed dismissal grounds in a pre-answer motion or, for most grounds, in its answer and later seek summary judgment on them.

Meisner v. Hamilton, Fulton, Montgomery Bd. of Coop. Educ. Servs. · filed 2019-09-12(a)

A motion for summary judgment is generally "based upon the over-all merits of the case rather than on an individual defense," but it is "acceptable practice to move for summary judgment on grounds listed in CPLR 3211 (a) when these are asserted as defenses in the answer" ( Houston v Trans Union Credit Info. Co. , 154 AD2d 312, 313 [1989]; see CPLR 3211 [e]; John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3211:9 ["summary judgment may be sought on any basis (including a CPLR 3211 [a] ground) that resolves part or all of the case"]; see e.g. Fapco Landscaping, Inc. v Valhalla Union Free School Dist. , 61 AD3d 922, 922-923 [2009] [addressing on summary judgment the defense of statute of limitations]; Sheils v County of Fulton , 14 AD3d 919, 921-922 [2005] [addressing on summary judgment the defense of failure to exhaust administrative remedies], lv denied 4 NY3d 711 [2005]).

Section 3211(e) can deem a non-jurisdictional defense waived, but the court found no waiver issue when allowing the defense to be added by amendment.

1163 Manor Realty LLC v. La Catrina Mexican Rest. Corp. · filed 2024-04-11(e)

Noteworthy is that the defense which respondents seek to add is a non-jurisdictional defense. Hence, there is no issue of waiver. See Ficorp, Ltd. v. Gourian, 263 AD2d 392, 393, 693 N.Y.S.2d 37 (1999), lv. denied in part and dismissed in part, 94 NY2d 889, 706 N.Y.S.2d 76, 727 N.E.2d 574 (2000), authorized the amendment of an answer to add a non-jurisdictional defense which would otherwise be deemed waived pursuant to CPLR §3211(e).

Section 3211(a)(5) permits dismissal when a stipulation bars the claims and no grounds to set aside the stipulation are shown.

Matter of Rothman · filed 2020-05-06(a)(5)

Since the appellants failed to show any grounds such as fraud, collusion, mistake, or accident to set aside the stipulation, dismissal of the petition pursuant to CPLR 3211(a)(5) was warranted ( see Matter of Marquez , 299 AD2d 551, 552; Matter of Slaughter , 206 AD2d 537, 537).

Section 3211(g) imposes a substantial-basis dismissal standard that conflicts with the federal pleading standard in a diversity action.

Kesner v. Buhl · filed 2022-03-10(g)

Even assuming that § 70-a gave a federal court the latitude whether to apply New State procedural law such as CPLR § 3211(g), the statute itself would still embed a less plaintiff-friendly standard than Rule 12 (and Rule 56). ... The Court accordingly grants Kesner’s motion to dismiss Buhl’s counterclaim based on § 70-a, because, as in Abbas, Reid, and Nat’! Academy, granting relief under § 70-a would require the Court to apply a state procedural standard that conflicts with the Federal Rules of Civil Procedure.

After removal to federal court, a pending motion under CPLR 3211 is treated under analogous federal rules because New York procedural rules no longer govern.

James v. City of Rochester · filed 2023-05-11

Baxter’s motion was made pursuant to N.Y. CPLR §§ 3211(a)(1), (a)(5) and (a)(7), which provide in pertinent part that a complaint can be dismissed if: documentary evidence conclusively establishes a defense to the claim; the action is time-barred; or the pleading fails to state a cause of action, respectively. The action having been removed to federal court, New York’s procedural rules no longer govern; see Powell v. City of Jamestown, No. 21-cv-721, 2022 WL 1913581, at *19 (W.D.N.Y. June 3, 2022); TicketNetwork, Inc. v. Darbouze, 133 F.Supp.3d 442, 445 n.3 (D.Conn. 2015). The Court will therefore treat Baxter’s motion as if it had been brought under the most analogous rules of the Federal Rules of Civil Procedure, Rules 12(b)(6) and 12(c).

CPLR 3211(g)’s substantial-basis dismissal standard does not apply in federal court because it conflicts with Federal Rules of Civil Procedure 12 and 56.

Executive Park Partners LLC v. Benicci Inc. · filed 2023-05-31(g)

Section 70-a of New York’s amended anti-SLAPP statute allows a defendant to recover “damages, including costs and attorney’s fees,” by bringing a motion to dismiss pursuant to CPLR 3211(g), which “shall be granted” unless the plaintiff demonstrates that the cause of action had a “substantial basis in fact and law.” ... The Court agrees. “Courts in this district have held that § 70-a is inapplicable in federal court because its substantial basis standard articulated in New York’s anti-SLAPP law conflicts with the standards under Federal Rules of Civil Procedure 12 and 56.”

The heavy burden for piercing the corporate veil applies on a CPLR 3211 motion.

Max Markus Katz, P.C. v. Sterling Natl. Bank · filed 2022-06-23

As an initial matter, defendant incorrectly claims that the "heavy burden" standard does not apply on [*2]a CPLR 3211 motion ( see Sheridan, 19 AD3d at 332).

Under CPLR 3211(a)(7), a claim to pierce the corporate veil must allege abuse of the corporate form; allegations of improper acts or bad faith while representing the company are insufficient.

Chester Green Estates, LLC v. Arlington Chester, LLC · filed 2022-12-14(a)(7)

The Supreme Court properly granted Fried's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him, since the allegations in the complaint, if proven, would establish that Fried acted in his capacity as a member of Arlington. Generally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation with respect to the challenged transaction, and (2) that domination was used to commit fraud or wrong against the plaintiff which resulted in injury to the plaintiff. At the pleading stage, the plaintiff must allege more than simply engaging in improper acts or acting in bad faith while representing the corporation. In addition to complete domination of the corporation, the pleading must allege abuse of the privilege of doing business in the corporate form to perpetrate a wrong or injustice ( see Cortlandt St. Recovery Corp. v Bonderman , 31 NY3d 30, 47).

CPLR 3211(a)(7) requires a party seeking to pierce the corporate veil to plead facts supporting abuse of the corporate form, and CPLR 3211(a)(5) places the initial burden on a defendant to show that the limitations period expired.

Board of Mgrs. of the Brighton Tower II Condominium v. Brighton Bldr., LLC · filed 2024-04-10(a)(7), (a)(5)

Thus, in order to survive a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), a party seeking to pierce the corporate veil must allege facts that, if taken as true and accorded every favorable inference, would support a finding that the defendant abused the corporate form, such as "the failure to adhere to corporate or LLC formalities, inadequate capitalization, commingling of assets, [or] the personal use of [corporate or] LLC funds" ( Olivieri Constr. Corp. v WN Weaver St., LLC , 144 AD3d 765, 767 [internal quotation marks omitted]).

Under CPLR 3211(a)(7), a sufficiently pleaded claim to pierce the corporate veil survives a motion to dismiss.

Goldberg v. KOSL Bldg. Group, LLC · filed 2025-03-26(a)(7)

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the amended complaint as sought to hold Ben-Simon personally liable for the alleged wrongdoing of Cooper Lots and KOSL under the doctrine of piercing the corporate veil.

On an appeal from a CPLR 3211 dismissal motion, the court confines its analysis to the four corners of the pleading.

Western & Southern Life Ins. Co. v. U.S. Bank N.A. · filed 2022-08-09

In assessing an appeal that arises from a motion to dismiss brought pursuant to CPLR 3211, our analysis of plaintiffs' claims is limited to the four corners of the pleading ( Johnson v Proskauer [*3]Rose LLP , 129 AD3d 59, 67 [1st Dept 2015]).

On a motion to dismiss under Section 3211, the court liberally construes the pleading, accepts its factual allegations as true, and gives the plaintiff every possible inference.

Board of Mgrs. of the Blackfriars Condominium v. AG Ebenezer LLC · filed 2024-12-03

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."

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

Ding v. Frank · filed 2025-03-17(a)(7)

When considering a motion to dismiss based upon CPLR § 3211(a)(7), the court must accept the alleged facts as true, accord the plaintiff the benefit of every possible favorable inference, and determine whether the facts alleged fit into any cognizable legal theory.

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

SPCH Multifamily Credit Ops 1 LLC v. Construction Mgt. & Dev.-Cal., LLC · filed 2025-04-17

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

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

Spooner v. Columbia Mem. Hosp. · filed 2025-08-18(a)(7)

The CPLR R 3211 (a) (7) review standard requires that a Court "must give the pleadings a liberal construction, accept the allegations as true and accord the Petitioners every possible favorable inference" ( Chanko v. Am. Broad Companies, Inc ., 27 NY3d 46, 52 [2016]; see also, Conklin v Laxen , 180 AD3d 1358, 1362 [4th Dept. 2020]; Piller v Tribeca Dev. Group LLC , 156 AD3d 1257, 1261 [3d Dept. 2017]).

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

Curtis v. Oxford Health Plans (NY), Inc. · filed 2026-03-05

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

On a motion to dismiss for failure to state a cause of action, factual claims flatly contradicted by the record are not presumed true.

Fernando v. Wilmington Sav. Fund Socy., FSB · filed 2022-09-21(a)(7)

However, "factual claims which are flatly contradicted by the record are not presumed to be true" ( Constant v Public Adm'r of Queens County , 204 AD3d 640, 641 [internal quotation marks omitted]; see Maas v Cornell Univ. , 94 NY2d 87, 91; Marinelli v New York Methodist Hosp. , 205 AD3d 710).

CPLR 3211 allows a claim to withstand dismissal when its factual allegations sufficiently support it.

Lateral Inv. Mgt., LLC v. Marcum, LLP · filed 2024-10-29

The factual allegations underlying these assertions are sufficient to withstand a motion to dismiss under CPLR 3211.

A motion under CPLR 3211(b) to strike affirmative defenses is moot when all causes of action have been dismissed.

Talmidov Inc. v. Marina Holding Corp. · filed 2024-01-09(b)

Plaintiff moves for summary judgment, pursuant to CPLR 3212(a), and to strike defendants' affirmative defenses, pursuant to CPLR 3211(b) (MS #1). ... Turning now to the branch of plaintiff's motion to strike affirmative defenses and to dismiss counterclaims, since all the causes of action are dismissed, the branch of plaintiff's motion (MS #1) to strike affirmatives defenses is DENIED as moot.

Under CPLR 3211(b), a plaintiff cannot strike a defense that the complaint fails to state a cause of action, because doing so would test the sufficiency of the plaintiff’s own claim.

97th St. Commons, LLC v. Ortega · filed 2025-04-25(b)

The third affirmative defense, failure to state a cause of action, must also survive. ( see Ochoa V Townsend , 209 AD3d 867, 868 [2nd Dept. 2022] ("[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim.") [citations omitted]; see also Jacob Marion, LLC v Jones , 168 AD3d 1043, 1044 [2nd Dept. 2019]).

On a motion to dismiss an affirmative defense, the plaintiff must show that the defense is without merit as a matter of law.

Oshodi v. 30 Linden Blvd., LLC · filed 2025-09-02(b)

On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law ( see Muniz v SPO Rest., LLC , 227 AD3d 1002, 1004 [2d Dept 2024]; Vita v New York Waste Servs., LLC , 34 AD3d 559 [2d Dept 2006]).

Section 3211(g)(3) permits specified discovery to obtain facts needed to oppose an anti-SLAPP dismissal motion before the motion is decided.

Kohler v. West End 84 Units LLC · filed 2025-09-23(g)(3)

Such discovery is tailored to aid a party in summoning "facts essential to justify its opposition" to a SLAPP claim (CPLR 3211[g][3]) and thereby show a substantial basis for their claims ( see Reeves , 232 AD3d at 24). ... Under these circumstances, we modify Supreme Court's denial of the motion to dismiss directed at the SLAPP claims and remand the action for discovery under CPLR 3211(g)(3) prefatory to determination of the dismissal motion.

Section 3211(g)(3)'s discovery stay ends when the trial court rules on the anti-SLAPP motion to dismiss; an appeal does not reinstate it.

Trump v. Trump · filed 2024-01-12(g)(3)

Thus, once a decision is rendered on the motion, CPLR 3211(g)(3) no longer applies. The statute makes clear that the stay imposed upon the filing of an anti-SLAPP motion to dismiss is automatically lifted as soon as the trial court rules on the motion, and it says nothing about reimposition of a stay should the losing movant appeal.

CPLR 3211(g)(3) permits limited discovery to oppose an anti-SLAPP dismissal motion when the opponent shows under oath why essential facts cannot be presented.

Isaly v. Garde · filed 2024-03-18(g)(3)

In the absence of any proof, the Court cannot simply assume that discovery must be necessary to defeat an anti-SLAPP motion. Accordingly, the Court will deny plaintiff's motion for CPLR 321 l(g)(3) discovery from defendant Burke.

A defendant lacks standing to move to dismiss for failure to state a claim pleaded solely against another defendant.

Pizzingrilli v. Von Kessel · filed 1979-08-27(a)(7)

Since the third cause of action is pleaded solely against defendant doctor, ... defendant hospital lacks standing to move that it be dismissed for failure to state a claim against it.

A proposed intervenor denied leave to intervene lacks standing to move to dismiss the complaint under CPLR 3211.

U.S. Bank N.A. v. France · filed 2025-06-25

The remaining branches of Coombs's motion were properly denied for lack of standing ( see CPLR 3211).

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

Orrego v. Knipfing · filed 2025-07-09(e)

However, "[s]uch a motion must be made 'before service of the responsive pleading is required,' or it is untimely" ( 21st Mtge. Corp. v Raghu , 197 AD3d at 1215 [citation omitted], quoting CPLR 3211[e]). ... Thus, as the court properly determined, the defendants timely made their pre-answer motion to dismiss the complaint on May 14, 2021.

Section 3211(a)(2) provides the procedure for dismissing a nonripe controversy because justiciability implicates subject matter jurisdiction.

Cohen v. New York State Legislative Task Force · filed 2012-03-09(a)(2)

CPLR 3211 (a) (2) provides the proper vehicle to seek dismissal of a nonripe controversy, because the requirement of justiciability under CPLR 3001... implicates the subject matter jurisdiction of the court (see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 241 n 3 [1984]).

Under CPLR 3211(a)(7), a cause of action may be dismissed as duplicative when it is based on the same facts, alleges the same wrongs, and seeks the same relief as another cause of action.

Nati v. County Line Stone Co., Inc. · filed 2024-12-20(a)(7)

Although a cause of action that is "based on the same facts, alleges the same wrongs, and seeks the same relief as" another cause of action in a complaint is subject to dismissal on a motion pursuant to CPLR 3211 (a) (7) ( Olney v Town of Barrington , 180 AD3d 1364, 1365 [4th Dept 2020]; see Drake v Village of Lima , 221 AD3d 1481, 1483 [4th Dept 2023]; Jakes-Johnson v Gottlieb , 200 AD3d 1679, 1680-1681 [4th Dept 2021]), here, plaintiffs' first and second causes of action are not based on the same facts and do not allege the same wrongs.

A plaintiff moving under CPLR 3211(b) to dismiss an affirmative defense must show that the defense is without merit as a matter of law.

Hosan v. Patel · filed 2026-04-22(b)

However, the Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the defendants' affirmative defense alleging comparative negligence. ... Here, the plaintiff failed to establish that the defendants' affirmative defense alleging comparative negligence was without merit as a matter of law (see Bornsztejn v Zito, 221 AD3d 770, 772; Kirby v Davis, 208 AD3d 1171, 1173).

CPLR 3211(b) permits dismissal of affirmative defenses barred by a no waiver provision and pleaded in conclusory terms.

Board of Mgrs. of 25 Prince St. Condominium v. NYC Prince Holdings LLC · filed 2024-12-31(b)

The motion court should have dismissed defendant's affirmative defenses of waiver and estoppel under CPLR 3211(b) as barred by the no waiver provision in the declaration and insufficiently and conclusorily pleaded (see e.g. 170 W. Vil. Assoc. v G & E Realty, Inc., 56 AD3d 372, 372-373 [1st Dept 2008]).

Section 3211(b) does not permit a plaintiff to strike an affirmative defense alleging failure to state a cause of action.

First Natl. Bank of Long Is. v. Pamintuan · filed 2025-02-28(b)

It is noted that it was impermissible for Plaintiff to move to dismiss affirmative defenses alleging failure to state a cause of action.

Section 3211(b) permits dismissal of an affirmative defense that is not stated or has no merit.

22-22 Jackson Ave. Owner LLC v. Yue Fang · filed 2025-03-20(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."

Under CPLR § 3211(b), an affirmative defense may be stricken only if it is without merit as a matter of law.

Gomez v. Gomez · filed 2025-04-22(b)

Pursuant to CPLR §3211(b), "defenses may be stricken only when they are 'without merit as a matter of law'." ( 1691 Fulton Ave. Assoc., LP v Watson , 55 Misc 3d 1221[A], *8 [Civ Ct, Bronx County 2017]; see also Vita v NY Waste Servs., LLC , 34 AD3d 559, 559 [2d Dept 2006]).

Section 3211(b) permits a court to strike a defense that is not stated or lacks merit when the movant shows it cannot be maintained; the defense’s proponent must then raise a triable issue.

Konate v. New York City Police Dept. · filed 2025-05-12(b)

CPLR § 3211(b) authorizes striking defenses “not stated” or “without merit” where the movant proves the defense cannot be maintained; the burden then shifts to the proponent to raise a triable issue (Town of Hempstead v. Lizza Indus., 293 AD2d 739 [2d Dept 2002]).

Section 3211(b) permits a court to deny a motion to strike comparative-fault defenses when facts bearing on the plaintiff’s fault remain disputed.

Mulero v. Rollins · filed 2025-06-05(b)

Officer Rollins’ affidavit, in which he avowed that he observed plaintiff stop and start his e-bike as he drove slowly on the sidewalk, raises an issue of fault in causation of the accident (NYCHA Doc. No. 27, ¶ ¶ 4-6; see De Los Santos v New York City Tr. Auth., 129 AD3d 453, 454 [1st Dept 2015]). ... ORDERED, that the motion by plaintiff seeking an Order of this Court, pursuant to CPLR § 3211(b), striking any and all of defendants’ affirmative defenses relating to plaintiff’s alleged comparative fault is denied.

CPLR 3211(b) permits dismissal of affirmative defenses pleaded as bare legal conclusions without supporting facts.

85 Stanton Realty LLC v. Street Lawyer Servs. NYC, LLC · filed 2025-07-08(b)

New York courts consistently hold that affirmative defenses pleaded as bare legal conclusions without factual allegations are insufficient and subject to dismissal.

CPLR 3211(b) requires a party seeking to dismiss an affirmative defense to establish that the defense is without merit as a matter of law.

Amsterdam Tobacco Co., Inc. v. Harold Levinson Assoc., LLC · filed 2025-08-06(b)

The Supreme Court properly denied the plaintiffs' motion pursuant to CPLR 3211(b) to dismiss HLA's affirmative defense alleging the good faith "meeting competition" exception to the CMSA. The plaintiffs did not establish that this affirmative defense was without merit as a matter of law ( see Tax Law § 486[b][1]; Amsterdam Tobacco Co., Inc. v Harold Levinson Assoc., LLC , 201 AD3d at 847-849; see generally Muniz v SPO Rest., LLC , 227 AD3d 1002).

CPLR 3211(b) permits dismissal of affirmative defenses that are not stated or lack merit.

Chen v. Wilder · filed 2025-08-15(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 emails submitted by defendant do not support his affirmative defenses; they show that some negotiations occurred but were never finalized.

Section 3211(b) permits dismissal of affirmative defenses that plead legal conclusions without supporting facts.

Cloudfund, LLC v. Clark Sharp & Reynolds LLC · filed 2025-09-22(b)

Where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211(b).

CPLR 3211(b) permits dismissal of an affirmative defense when the moving party shows that the defense lacks merit as a matter of law.

Bank of Am., N.A. v. Kim · filed 2025-09-24(b)

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." ... Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the defendants' affirmative defense alleging lack of standing.

CPLR 3211 permits dismissal of affirmative defenses that lack supporting facts or do not state a recognized legal defense.

Simply Funding LLC v. Brannon Elec. LLC · filed 2025-10-09

None of the defenses plead facts to support them. Some are not even recognized defenses. For example, “Plaintiff is suing for the wrong amount” does not state a legal defense to a claim of breach of contract. For all these reasons, Seq. #1 is GRANTED and the affirmative defenses are DISMISSED.

Under CPLR 3211(b), a party seeking to dismiss an affirmative defense must show that the defense lacks merit as a matter of law.

798 Herkimer LLC. v. Johnson · filed 2025-10-15(b)

Court have held that Courts have held on a motion to strike pursuant to CPLR 3211(b) when moving to dismiss or strike an affirmative defense as merit less, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law. ... However respondent has failed to offer an affidavit from her son or any proof of his residency at the time the case was commences, as such the first affirmative defense is dismissed.

CPLR 3211(b) does not permit a plaintiff to strike an affirmative defense alleging failure to state a cause of action, because that would test the sufficiency of the plaintiff's own claim.

Diversified Bldg. Co., LLC v. Nader Enters., LLC · filed 2025-11-05(b)

With respect to the defendant's second affirmative defense, alleging failure to state a cause of action, the defendant is correct that "no motion lies under CPLR 3211(b) to strike this affirmative defense as this amounts to an endeavor by the plaintiff to test the sufficiency of [its] own claim" ( Lewis v US Bank N.A. , 186 AD3d 694, 697; see Butler v Catinella , 58 AD3d 145, 150).

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

Ramirez v. Issa · filed 2026-01-21(b)

Here, the Supreme Court properly denied that branch of the plaintiffs' motion which was pursuant to CPLR 3211(b) to dismiss the first affirmative defense, alleging failure to state a cause of action. "'[N]o motion . . . lies under CPLR 3211(b) to strike th[is] defense . . . as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim'" ( Jacob Marion, LLC v Jones , 168 AD3d 1043, 1044, quoting Mazzei v Kyriacou , 98 AD3d 1088, 1089).

Under CPLR 3211(b), a petitioner seeking to dismiss a defense bears a heavy burden to show that the defense lacks merit as a matter of law.

Edelstein LLC v. Rodriguez · filed 2026-01-21(b)

On a motion to dismiss a defense under CPLR 3211(b), the petitioner bears the "heavy burden" of demonstrating that the defenses are without merit as a matter of law ( Granite State Ins. Co. v Transatlantic Reins. Co. , 132 AD3d 479, 481 [1st Dept 2015]).

Section 3211(b) permits dismissal of affirmative defenses that are conclusory and unsupported by particularized facts when the defending party fails to rebut a prima facie showing with competent proof or sworn allegations.

Shine Capital Group LLC v. Protalus USA LLC · filed 2026-02-26(b)

As to the remaining affirmative defenses, defendants failed to submit competent evidentiary proof or sworn factual allegations sufficient to defeat plaintiffs prima facie showing that the asserted defenses are conclusory and boilerplate, unsupported by particularized facts and therefore subject to dismissal.

Section 3211(b) permits dismissal of affirmative defenses that are bare legal conclusions without factual or legal support.

36th HY LLC v. Zhen · filed 2026-02-26(b)

Likewise, guarantor's six affirmative defenses are stricken and dismissed as a matter of law. ... Guarantor's affirmative defenses consist of nothing more than bare legal conclusions, and guarantor, in failing to oppose the instant motion, presents no factual or legal basis for maintaining said defenses (Chrysler East Building, LLC v Keenwawa, Inc., 217 AD3d 494, 494-495 [1st Dept 2023]; see also ConnectOne Bank v Legacy ... Builders/Developers Corp., 238 AD3d 632, 633 [1st Dept 2025] ["Supreme Court providently exercised its discretion when it dismissed defendants' 11 affirmative defenses as 'only a bare legal conclusion without supporting facts'"]}.

On a motion to dismiss affirmative defenses, the plaintiff must show they lack merit, and the answer is liberally construed in the defendant’s favor.

Hassan Gen. Contr. Corp. v. 224-30 Eighth Ave LLC · filed 2026-03-04(b)

For a CPLR § 3211(b) motion to dismiss affirmative defenses, the plaintiff bears the burden of demonstrating a lack of merit and the “defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed.” ... Here, the Court finds that the affirmative defenses are sufficiently pled.

Section 3211(b) permits dismissal of an affirmative defense that lacks merit, including one pleaded only as a legal conclusion without factual allegations.

Manhattan Dwelling Corp. v. 200 W. 58th St. LLC · filed 2026-03-06(b)

CPLR §3211(b) permits a party to move to dismiss an affirmative defense on the grounds that it lacks merit. Affirmative defenses that are merely pled with legal conclusions and are lacking in factual allegations should be dismissed.

Under CPLR 3211(b), a party moving to dismiss an affirmative defense bears a heavy burden to show that the defense is without merit as a matter of law.

Island Consol. v. Grassi & Co., Certified Pub. Accountants PC · filed 2026-03-10(b)

Accordingly, plaintiffs, in moving to dismiss the 12th and 15th affirmative defenses pursuant to CPLR 3211(b), failed to "bear[] the heavy burden of showing that the defense[s] [are] without merit as a matter of law" ( Emigrant Bank v Rosabianca , 210 AD3d 527, 527 [1st Dept 2022] [internal quotation marks omitted]).

Section 3211(b) permits dismissal of an affirmative defense that is not stated or has no merit.

Simply Funding LLC v. Downtown Trading, Inc. · filed 2026-03-19(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.

Section 3211(b) requires a party seeking dismissal of an affirmative defense to demonstrate that the defense has no merit.

Ravelo v. RXR 32 Old Slip Owner, LLC · filed 2026-03-31(b)

Supreme Court should also not have dismissed defendants' affirmative defense of culpable conduct, as plaintiffs did not demonstrate that the defense had no merit ( see CPLR 3211[b]).

CPLR 3211(b) permits dismissal of affirmative defenses that merely state legal conclusions without supporting facts.

New York Annual Conference of the United Methodist Church v. Union Methodist Church of S. Ozone Park · filed 2026-05-13(b)

Moreover, the Supreme Court should have granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the defendants' affirmative defenses. ... Here, the defendants' affirmative defenses merely pleaded conclusions of law without proffering any supporting facts.

A pleaded waiver defense can preserve a release defense under CPLR 3211(e) when, liberally construed, it gives notice that the party relies on a release.

Brodeur v. Hayes · filed 2003-05-08(e)

Initially, many affirmative defenses are waived by failure to raise them in a proper pleading or motion (see CPLR 3211 [e]; Braunsdorf v Haywood, 295 AD2d 731, 732 [2002]). ... Plaintiff’s assertion of the affirmative defense “waiver,” liberally construed, gave notice that he proposed to rely on defendant’s waiver of claims through the agreement’s release and hold harmless provisions.

Section 3211 permits the court to strike affirmative defenses that have no merit.

Brown Bark I, L.P. v. Metroflor Transportation Services, Inc. · filed 2007-11-30(b)

This motion by plaintiff, Brown Bark I, L.E, ... and for an order pursuant to CPLR 3211 striking the affirmative defenses of the defendants, Metroflor Transportation Services, Inc. and Alan Futterman, is granted. ... Most of them have no integrity: specifically the failure to state a cause of action, plaintiff failed to perform its contractual duties, lack of verification, setoff, and failure to mitigate.

Section 3211(b) permits dismissal of a defense that is not stated or has no merit, but the movant must show that an affirmative defense lacks merit as a matter of law.

Bank of New York v. Penalver · filed 2015-02-18(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.” ... Here, the Supreme Court should not have granted those branches of the plaintiffs motion which were to dismiss the appellant’s first and third affirmative defenses, as it cannot be said at this point that those defenses were without merit (see CPLR 3211 [b]; Ramanathan v Aharon, 109 AD3d at 531).

Section 3211(b) permits dismissal of an affirmative defense that has no merit.

Rapid Capital Finance, LLC v. Natures Market Corp. · filed 2017-10-11(b)

Because review of the terms of the agreement establishes as a matter of law that it is a purchase agreement rather than a loan, defendants’ usury defense has no merit, and must be dismissed pursuant to CPLR 3211 (b).

CPLR 3211(a)(1) and (a)(3) do not warrant dismissal when a dispute over the plaintiff’s rights under a loan agreement and assignment cannot be resolved on the motion.

Conlon Holdings LLC v. Chanos · filed 2025-01-03(a)(1), (a)(3)

However, as noted above, there is legitimate dispute as to that issue, and therefore as to whether the Assignment and Assumption Agreement constitutes a valid and complete assignment of the Loan Agreement. That issue cannot be resolved on a motion to dismiss. Therefore, dismissal pursuant to CPLR § 3211(a)(1) and (a)(3) is denied.

Section 3211(e) waives a documentary-evidence defense unless it is raised in a timely motion or the responsive pleading.

Zain v. Ernest L. Isaacson DPM, P.C. · filed 2025-01-07(e)

To the extent that the defendants also moved to dismiss the complaint based on a defense founded upon documentary evidence, they have waived that affirmative defense by failing to assert it in their answers.

Section 3211(e) waives a documentary-evidence defense under subsection (a)(1) when it is neither raised in a pre-answer motion nor pleaded as a defense.

Yakte Props., LLC v. Milner · filed 2025-01-30(e)

Milner did not make a pre-answer motion to dismiss or raise the defense based on documentary evidence pursuant to CPLR 3211(a)(1); thus, any purported defense based on CPLR 3211(a)(1) is waived (see CPLR 3211 [e]).

A defendant waives a documentary-evidence defense under CPLR 3211(a)(1) by answering without raising it and then moving to dismiss on that ground.

Breede v. Grant · filed 2025-10-06(a)(1)

As an initial matter, any objection or defense founded upon documentary evidence pursuant to CPLR 3211 (a) (1) must be raised in a pre-answer motion to dismiss or in the responsive pleading. Defendant filed an answer, then filed the present motion to dismiss (NYSEF Doc. Nos. 5, 8). By filing an answer, which did not raise a defense founded upon documentary evidence, defendant waived this defense (CPLR 3211 [e]). Accordingly, the branch of the motion seeking dismissal pursuant to CPLR 3211 (a) (1) is denied.

Section 3211(g) does not apply to government enforcement actions.

City of New York v. Exxon Mobil Corp. · filed 2025-01-14(g)

In doing so, the Court determined that the anti-SLAPP statute does not apply to government enforcement actions. ... For the same reasons as set forth on the record after oral argument held, the Court denies Defendants' Motions to Dismiss under CPLR § 3211(g).

A motion to dismiss for lack of personal jurisdiction based on improper service may be made only by the party allegedly improperly served.

Federal Natl. Mtge. Assn. v. Doodnauth · filed 2025-01-29(a)(8)

Nevertheless, contrary to Sauers's contention, the Supreme Court properly denied those branches of the motion the defendant, Mangotree, and Sauers which were pursuant to CPLR 5015(a)(4) to vacate the order dated March 3, 2015, and the order and judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant for lack of personal jurisdiction. Sauers lacks standing to challenge whether the defendant 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 U.S. Bank N.A. v Gotterup , 203 AD3d 982, 983; Rhoe v Reid , 166 AD3d 919, 922; Wells Fargo Bank, N.A. v Bachmann , 145 AD3d 712, 714).

A person who takes property subject to a valid notice of pendency cannot seek dismissal under CPLR 3211(a)(8) based on improper service of another defendant in a mortgage foreclosure action; that objection is personal to the defendant allegedly improperly served.

National City Mtge. Co. v. Wercberger · filed 2025-07-30(a)(8)

The Supreme Court properly denied that branch of Kaplan's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Wercberger for lack of personal jurisdiction. Kaplan, who took the property subject to a valid notice of pendency, and therefore had notice of this action, lacks standing to challenge whether Wercberger was properly served with process, since, in a mortgage foreclosure action, such a claim is personal in nature and may only be raised by the party allegedly improperly served ( see Federal Natl. Mtge. Assn. v Doodnauth , 234 AD3d 936, 938; U.S. Bank N.A. v Gotterup , 203 AD3d 982, 983; NYCTL 1996-1 Trust v King , 13 AD3d 479; 3 Bergman on New York Mortgage Foreclosures § 23.45).

A Division finding of probable cause does not change the pleading standard under § 3211(a)(7) in a plenary action.

Katz v. New York City Hous. Preserv. & Dev. · filed 2025-08-18(a)(7)

In a plenary action, the pleading standard remains unchanged, as does the standard of review under CPLR § 3211 (a)(7).

On a motion to dismiss for failure to state an employment discrimination claim, the complaint need only give fair notice of the claim and its grounds; it need not plead facts establishing a prima facie case.

Keenan v. Bloomberg, LP · filed 2025-03-03(a)(7)

On a motion to dismiss, “employment discrimination cases are [] generally reviewed under notice pleading standards[;] a plaintiff alleging employment discrimination ‘need not plead [specific facts establishing] a prima facie case of discrimination’ but need only give ‘fair notice’ of the nature of the claim and its grounds” (Vig v New York Hairspray Co., LP, 67 AD3d 140, 145 [1st Dept 2009] [internal citation omitted]).

Under CPLR 3211(a)(7), an employment discrimination complaint need only give fair notice of the claim and its grounds; it need not plead facts establishing a prima facie case.

Cummings v. City of New York · filed 2026-02-19(a)(7)

Indeed, a "plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds" ( id. [internal quotations and brackets omitted]).

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

Fogel v. Health · filed 2026-03-27

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction," and we must "accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez , 84 NY2d 83, 87-88 [1994]; see Rovello v Orofino Realty Co. , 40 NY2d 633, 634 [1976]).

CPLR 3211(a)(7) does not permit dismissal of an affirmation submitted in support of a motion because the affirmation is not a pleading.

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

The Supreme Court properly denied the motion of the defendant Nicholas Spyreas (hereinafter the defendant) pursuant to CPLR 3211(a)(7) to dismiss an emergency affirmation submitted in support, inter alia, of the plaintiff's motion for a preliminary injunction enjoining the disbursal of funds held in escrow, as the emergency affirmation was not a pleading subject to dismissal pursuant to CPLR 3211(a)(7).

A defamation complaint can survive a motion to dismiss without naming the authors or disseminators of anonymous letters when it alleges that they were the defendant’s employees or board members.

Rimar v. Country Club of Buffalo · filed 2025-03-14(a)(7)

CCB contends that the amended complaint should be dismissed because it fails to state the specific identity of the author(s) and disseminator(s) of the anonymous letters. We reject that contention. At the pleading stage, it is sufficient that plaintiff alleges that those actions of authorship and dissemination were taken by either [*2]employees of CCB or members of its board ( see M.H.B. v E.C.F.S. , 177 AD3d 479, 479-480 [1st Dept 2019]; Matter of Weitzman v Long Beach City Sch. Dist. , 175 AD3d 504, 505-506 [2d Dept 2019]).

Under CPLR 3211(a)(7), a complaint sufficiently pleads a required guaranty demand when it alleges that the demand was made.

U.S. Bank N.A. v. MAve Hotel Invs. LLC · filed 2025-04-10(a)(7)

For purposes of a motion to dismiss, plaintiff sufficiently alleged that it made a requisite demand ( see Harris v IG Greenpoint Corp. , 72 AD3d 608, 609 [1st Dept 2010]).

Under CPLR 3211(a)(7), pleadings are construed liberally, but bare legal conclusions without specific facts cannot defeat a motion to dismiss.

Matter of Southlea · filed 2026-03-13(a)(7)

"On a motion to dismiss objections for failure to meet the basic pleading requirements, there is a fundamental mandate to construe pleadings liberally in order to ensure that a claim with substance not be sacrificed to mere formality. That said, bare legal conclusions lacking factual specificity are insufficient to defeat a motion to dismiss" ( Matter of Capolarello , 86 Misc 3d 309, 310 [Sur Ct, Queens County 2024]; see SCPA 302 [2]; CPLR 3211 [7]; Matter of Allan , 5 NY2d 333, 345 [1959]).

An adequately pleaded claim for intentional infliction of emotional distress survives a motion to dismiss under CPLR 3211(a)(7).

Ain v. Glazer · filed 1999-01-12(a)(7)

Plaintiffs second cause of action for intentional infliction of emotional distress was also adequately pleaded.

A motion under CPLR 3211(a)(7) to dismiss for failure to plead serious injury must be denied when the plaintiff's bill of particulars alleges facts that, if true, establish a qualifying injury.

Epstein v. MTA Long Is. Bus · filed 2018-05-09(a)(7)

The Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury under any category of Insurance Law § 5102(d). The plaintiff's bill of particulars sufficiently alleges facts that, if true, demonstrate that she sustained injuries under both the permanent consequential limitation of use and 90/180-day categories of Insurance Law § 5102(d) ( see generally Leon v Martinez , 84 NY2d 83, 87-88).

CPLR 3211(a)(1) and (7) dismissal arguments are academic when the motion is a post-note of issue motion for summary judgment, even if it relies on those grounds.

Tiedemann v. Salerno · filed 2025-05-02(a)(1), (a)(7)

Preliminarily, we note that although defendant's motion for summary judgment pursuant to CPLR 3212 (b) was predicated on grounds that included, inter alia, CPLR 3211 (a) (1) and (7), it was nonetheless a post-note of issue motion for summary judgment, not a motion to dismiss ( see Meisner v Hamilton , Fulton , Montgomery Bd. of Coop. Educ. Servs. , 175 AD3d 1653, 1654 [3d Dept 2019]; see generally David D. Siegel & Patrick M. Connors, New York Practice § 283 at 538 [6th ed 2018]). Thus, Supreme Court properly considered the affidavits and attached exhibits submitted by the parties in reaching its determination on the merits ( see generally CPLR 3212 [b]), and plaintiff's contentions that the amended complaint should not have been dismissed pursuant to CPLR 3211 (a) (1) and (7) are academic ( see Blake v City of New York , 148 AD3d 1101, 1105 [2d Dept 2017]; see generally Cohen & Lombardo , P.C. v Connors , 169 AD3d 1399, 1401 [4th Dept 2019]).

CPLR 3211(a)(7) governs motions addressed to the pleadings; a motion seeking summary judgment is governed by the deadline in CPLR 3212(a).

Diaz v. New York City Health & Hospitals Corp. · filed 2001-12-17(a)(7)

Contrary to the defendants’ contention that their motion was addressed to the pleadings pursuant to CPLR 3211 (a) (7), the motion was for summary judgment, and therefore it should have been made no later than 120 days after the filing of the note of issue (see, CPLR 3212 [a]).

Dismissal for a prior pending action does not automatically add the dismissed action’s claims or allegations to the earlier action.

Alonso v. 401 E. 74 Owners Corp. · filed 2025-05-29(a)(4)

A dismissal of an action on the ground of another prior pending action does not cause that prior action to subsume automatically the causes of action and allegations of the dismissed action.

Section 3211(a)(4) permits a court to deny dismissal despite a prior related action and order consolidation when justice requires.

Lohr v. Fenton · filed 2025-05-30(a)(4)

Dismissal is not mandated, however, and the Court may issue such order as justice requires (CPLR 3211[a][4]). ... Under these circumstances, dismissal of the assault and battery action is not appropriate; instead, consolidation of the two actions is warranted as it promotes judicial economy, preserves the rights of the parties, and avoids potentially inconsistent verdicts.

Section 3211(a)(4) permits dismissal when a prior action involves substantially identical parties and sufficiently similar claims and relief; complete identity of parties is unnecessary.

Robinson v. Pearl Delta Funding LLC · filed 2025-07-18(a)(4)

Prosperum has established entitlement to dismissal pursuant to CPLR 3211(a)(4). While there is not a complete identity of parties, there is a substantial identity of parties.

CPLR 3211(a)(4) requires substantial, rather than complete, identity of parties and actions arising from the same subject matter or series of alleged wrongs to dismiss for a prior action pending.

Gray v. Nassau Life Ins. Co. · filed 2026-03-12(a)(4)

To dismiss on the basis of a prior action pending, a court needs to find substantial, not complete, identity of the parties across the relevant actions and that both actions arise out of the same subject matter or series of alleged wrongs ( see Syncora Guar. Inc. v J.P. Morgan Sec. LLC , 110 AD3d 87, 96 [1st Dept 2013]).

Under CPLR 3211(a)(7), group allegations can survive dismissal when they describe a course of conduct and discovery may identify the responsible entities.

Doe v. Combs · filed 2025-08-18(a)(7)

While the Company Defendants argue that Plaintiff fails to differentiate among the individual corporate entities, group allegations are not fatal where, as here, the Complaint alleges a course of conduct involving overlapping ownership and branding, and the identity of responsible parties may be clarified through discovery.

A stipulation barring a statute of limitations defense in an answer does not bar a motion to dismiss on that ground when the stipulation does not cover motions.

Carchi v. Antenucci · filed 1981-01-12(a)(5)

Since the limiting language in the newly added condition did not include motions, it cannot be construed to preclude defendants’ current motion. Accordingly, Special Term should have determined the motion on the merits and the matter must now be remanded for that purpose.

A complaint against a county must allege service of a notice of claim when that service is a condition precedent to the action.

Pretino v. Wolbern · filed 1981-11-30(a)(7)

...since the service of a notice of claim within the statutory period is a condition precedent to commencement of this action (see General Municipal Law, § 50-e, subd 1, par [a]; § 50-i, subd 1), such service is required to be alleged in the complaint so that it may state a cause of action against the county (see CPLR 3211, subd [a], par 7; see, also, Fullam v Westchester County Play land Comm., 276 App Div 925). In this case, the complaint fails to allege compliance with the General Municipal Law (§§ 50-e, 50-i), and plaintiff has not otherwise shown that a notice of claim was served upon the county.

Section 3211(a)(4) permits conditions imposed on dismissal to remain in effect independently of a foreign judgment in a related enforcement proceeding.

De Nunez v. Bartels · filed 1997-07-24(a)(4)

In addition, the power of Supreme Court to impose conditions upon dismissing the action before it on the ground of forum non conveniens (CPLR 3211 [a] [4]) is entirely independent of the foreign judgment at issue in the enforcement proceeding. Therefore, the restraining orders forbidding the disposition of any corporate assets held in the subject accounts, except in the ordinary course of the corporation’s business, remain in full force and effect.

A court may decide a fully briefed issue of law raised on a CPLR 3211 motion without remanding to allow an answer.

Karedes v. Colella · filed 2002-04-18

Here, however, this precise dispositive issue was urged by respondents as the basis for granting their CPLR 3211 (a) (7) motion, was fully briefed and argued by the parties before Supreme Court, and is solely an issue of law.

When two actions involve the same subject matter and parties, CPLR 3211(a)(4) permits consolidation rather than dismissal.

G.M. Canmar Residence Corp. v. Hotel 237, LLC · filed 2025-05-28(a)(4)

“Since both actions involve the same subject matter and parties, the more appropriate action is consolidation rather than dismissal. (See, 4 Weinstein– Korn–Miller, N.Y.Civ.Prac. Par. 3211.24; Siegel, Practice Commentary C3211:19 to McKinney's CPLR 3211[a][4]; Byer, Civil Motions, (316).”

CPLR 3211 permits dismissal when a plaintiff fails to comply with a conditional order requiring a deposition appearance and the filing of a note of issue and certificate of readiness.

Greer v. Garito · filed 2008-01-15

The Supreme Court properly granted that branch of the cross motion of the defendants Jessica Segal, an Assistant District Attorney, Dutchess County, Kathy Handkamp, Dutchess County Office of Probation, Dutchess County District Attorney’s Office, and Dutchess County Correction Facility (hereinafter collectively the County defendants), dated October 9, 2006, which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211. The County defendants demonstrated that the plaintiff failed to comply with a conditional order of this Court dated March 21, 2006 ... as he did not appear for his rescheduled deposition ... and failed to file a note of issue and certificate of readiness.