Motion to Dismiss (CPLR 3211)

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF [____________________]

[PLAINTIFF'S FULL NAME],

    Plaintiff,

                                            Index No. [____________________]/[____]

against

[DEFENDANT'S FULL NAME],

    Defendant.

NOTICE OF MOTION TO DISMISS

(CPLR 3211)

PLEASE TAKE NOTICE that upon the affirmation of [________________________________], Esq., dated [__/__/____], the exhibits annexed thereto, the accompanying Memorandum of Law, and upon all the pleadings and proceedings heretofore had herein, Defendant [____________________] will move this Court before the Honorable [____________________], J.S.C., at the [____________________] County Courthouse, [________________________________], New York, on [__/__/____] at [____] a.m./p.m., or as soon thereafter as counsel may be heard, for an Order pursuant to CPLR 3211 dismissing the Complaint of Plaintiff [____________________] in its entirety, with prejudice, together with such other and further relief as the Court may deem just and proper.

PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 3211(e) and 22 NYCRR § 202.8, answering papers, if any, shall be served at least seven (7) days before the return date of this Motion (for regular motion calendars) or as otherwise directed by court order.

PLEASE TAKE FURTHER NOTICE that Defendant [requests / does not request] oral argument on this Motion.

[________________________________]
[Attorney Name]
[Law Firm Name]
Attorneys for Defendant [____________________]

To:
[Plaintiff's Attorney Name]
[Firm Name]
[Address]

AFFIRMATION IN SUPPORT OF MOTION TO DISMISS

[ATTORNEY'S FULL NAME], an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true under penalty of perjury:

1. I am [a member of / an associate of] the law firm of [________________________________], attorneys for Defendant [DEFENDANT'S FULL NAME] ("Defendant") in the above-captioned action. I am fully familiar with the facts and circumstances set forth herein based upon my review of the file maintained by this office.

2. I submit this Affirmation in support of Defendant's Motion to Dismiss the Complaint filed by Plaintiff [PLAINTIFF'S FULL NAME] ("Plaintiff") pursuant to CPLR 3211.

3. Plaintiff commenced this action by filing a Summons and Complaint [with the Clerk of the Court / via NYSCEF] on [__/__/____].

4. Defendant was served with the Summons and Complaint on [__/__/____].

5. This Motion is timely. Under CPLR 3211(e), a motion to dismiss based on certain CPLR 3211(a) grounds (specifically CPLR 3211(a)(1), (3), (4), and (5)) must be made before service of the responsive pleading. [Alternatively: this motion is made within the time to answer.] Under CPLR 320, a defendant served personally in New York must appear within 20 days of service. Service by other means (mail, publication, etc.) extends the deadline to 30 days.

6. Annexed hereto as Exhibit A is a true and correct copy of the Summons and Complaint.

7. Annexed hereto as Exhibit B is a true and correct copy of [________________________________].

8. Annexed hereto as Exhibit C is a true and correct copy of [________________________________].

9. For the reasons set forth in the accompanying Memorandum of Law, Plaintiff's Complaint must be dismissed in its entirety.

[________________________________]
[Attorney's Full Name]

CRITICAL NOTE: NEW YORK'S UNIQUE MOTION TO DISMISS SYSTEM

New York does NOT use a Rule 12(b) framework. New York's motion to dismiss is governed exclusively by CPLR 3211, which is entirely distinct from the Federal Rules of Civil Procedure or the procedures used in most other states. Key distinctions:

1. CPLR 3211, not Rule 12(b): All dismissal motions in New York state courts are brought under CPLR 3211. Do not cite or reference "Rule 12(b)" in New York state court.

2. 11 Enumerated Grounds: CPLR 3211(a) lists eleven specific grounds for dismissal. Each ground has specific procedural and substantive requirements.

3. Notice Pleading (CPLR 3013): New York applies notice pleading — the complaint must "contain statements that give sufficient notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action."

4. Affirmation, Not Motion: In New York practice, the motion papers include a Notice of Motion, an Affirmation (not an "affidavit" for attorney submissions), a Memorandum of Law, and a Proposed Order.

5. NYSCEF E-Filing: New York uses the NYSCEF electronic filing system for most courts. All filings must comply with NYSCEF requirements.

GROUNDS FOR DISMISSAL UNDER CPLR 3211

Defendant moves to dismiss the Complaint under the following grounds (check all that apply):

☐ CPLR 3211(a)(1) — Documentary Evidence
The Complaint is barred by documentary evidence which conclusively establishes a complete defense to each and every cause of action asserted by Plaintiff. Specifically, [________________________________].

☐ CPLR 3211(a)(2) — Lack of Subject Matter Jurisdiction
This Court lacks subject matter jurisdiction over the action or over the subject matter of the Complaint because [________________________________].

☐ CPLR 3211(a)(3) — Lack of Legal Capacity to Sue
Plaintiff lacks the legal capacity to sue because [________________________________].

☐ CPLR 3211(a)(4) — Another Action Pending
There is another action pending between the same parties for the same cause of action in a court of the State of New York or the United States. The prior action is [________________________________], filed in [____________________] Court, Index/Case No. [____________________].

☐ CPLR 3211(a)(5) — Legal Bar (select all applicable sub-grounds)
The cause of action may not be maintained because of:
    ☐ Arbitration and award
    ☐ Collateral estoppel
    ☐ Discharge in bankruptcy
    ☐ Infancy or other disability of the moving party
    ☐ Payment
    ☐ Release
    ☐ Res judicata
    ☐ Statute of limitations
    ☐ Statute of frauds

☐ CPLR 3211(a)(6) — Counterclaim
The summons and complaint should be dismissed because there is a counterclaim pending against the plaintiff that [________________________________].
(Note: This ground is rarely litigated and applies in specific procedural circumstances.)

☐ CPLR 3211(a)(7) — Failure to State a Cause of Action
The Complaint fails to state a cause of action. Plaintiff has not alleged facts sufficient to support one or more causes of action as a matter of law.

☐ CPLR 3211(a)(8) — Lack of Personal Jurisdiction
This Court lacks personal jurisdiction over Defendant because [________________________________]. Defendant lacks sufficient minimum contacts with New York, and/or service of process was defective.

☐ CPLR 3211(a)(9) — Improper Service on Agent
The Court should not have jurisdiction of the action because defendant was not properly served and the summons was improperly served on a person who was not an authorized agent.

☐ CPLR 3211(a)(10) — Defendant Not Subject to Jurisdiction
The Court has not jurisdiction of the person of the defendant because [________________________________].

☐ CPLR 3211(a)(11) — Arbitration Agreement
The parties have entered into a binding arbitration agreement that covers the claims asserted in this action. Specifically, the [________________________________] Agreement dated [__/__/____], Section [____], requires arbitration of all disputes arising from [________________________________].

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

I. PRELIMINARY STATEMENT

This action arises from [________________________________]. As set forth below, Plaintiff's Complaint must be dismissed in its entirety pursuant to CPLR 3211 because [________________________________].

II. STATEMENT OF FACTS

[Insert factual narrative, referencing Complaint paragraphs and exhibit numbers.]

III. LEGAL ARGUMENT

A. New York's CPLR 3211 Standard

1. Overview of CPLR 3211

New York's motion to dismiss is governed by CPLR 3211, not Rule 12(b). CPLR 3211(a) enumerates eleven distinct grounds on which a defendant may move to dismiss. Each ground has its own standard and procedural requirements, as detailed below.

2. Pleading Standard — CPLR 3013 Notice Pleading

New York applies a notice pleading standard under CPLR 3013. Statements in a pleading "shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." However, New York does not require the detailed fact pleading of some other states, nor the federal Twombly/Iqbal plausibility standard.

On a CPLR 3211(a)(7) motion, the Court must accept all facts alleged in the Complaint as true, give the plaintiff the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory. Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994).

However, dismissal is warranted where: (a) the allegations are bare legal conclusions or factually unsupported; (b) the allegations are inherently incredible; or (c) the allegations are flatly contradicted by documentary evidence. See Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76 (1st Dep't 1999).

Heightened Pleading: For fraud claims, CPLR 3016(b) requires particularity — the circumstances constituting the wrong must be stated in detail.

B. CPLR 3211(a)(1) — Documentary Evidence

(Include if CPLR 3211(a)(1) is checked)

Under CPLR 3211(a)(1), a motion to dismiss may be granted where "a defense is founded upon documentary evidence." To succeed, the documentary evidence must "resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's claim." Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326 (2002).

Qualifying documentary evidence includes: written contracts, deeds, wills, authentic records, and similar unambiguous instruments. See Fontanetta v. Doe, 73 A.D.3d 78 (2d Dep't 2010). Affidavits, deposition testimony, and other evidence subject to contradiction do not qualify.

In this case, [________________________________] (Exhibit [____]) constitutes documentary evidence that conclusively establishes [________________________________]. Specifically, [________________________________]. This documentary evidence is not contradicted, ambiguous, or subject to interpretation, and it completely bars Plaintiff's claims.

C. CPLR 3211(a)(2) — Lack of Subject Matter Jurisdiction

(Include if CPLR 3211(a)(2) is checked)

Subject matter jurisdiction is a threshold, non-waivable requirement. The Supreme Court of the State of New York is a court of general jurisdiction (N.Y. Const. Art. VI, § 7), but lacks subject matter jurisdiction where [________________________________].

In this case, this Court lacks subject matter jurisdiction because [________________________________]. Specifically, [________________________________]. Accordingly, the Complaint must be dismissed.

D. CPLR 3211(a)(3) — Lack of Legal Capacity to Sue

(Include if CPLR 3211(a)(3) is checked)

"Legal capacity to sue" refers to a party's general power to appear as a litigant and to bring suit in a particular capacity. Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711 (2d Dep't 1986).

Plaintiff lacks legal capacity to sue because [________________________________]. Specifically:

• [________________________________] (e.g., Plaintiff is a dissolved corporation / unincorporated association lacking legal capacity / incompetent person without a representative / Plaintiff's business license was revoked)

E. CPLR 3211(a)(4) — Another Action Pending

(Include if CPLR 3211(a)(4) is checked)

Under CPLR 3211(a)(4), dismissal is appropriate when "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." The prior action need not be identical; the key question is whether the same transaction underlies both suits and whether plaintiff would be afforded substantial relief in the prior action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982).

In this case, the prior action is: [________________________________], pending in [____________________] Court, Index/Case No. [____________________], filed on [__/__/____]. That action involves the same parties and arises from the same underlying transaction, namely [________________________________]. Accordingly, this action should be dismissed.

F. CPLR 3211(a)(5) — Legal Bar

(Include if CPLR 3211(a)(5) is checked)

1. Statute of Limitations

(Include if statute of limitations is a ground)

Under CPLR [____] (applicable limitations period), an action for [________________________________] must be commenced within [____] year(s) of [________________________________]. See CPLR [____].

The limitations period accrued on [__/__/____] when [________________________________]. Plaintiff did not file this action until [__/__/____], which is [____] years and [____] months after accrual — outside the [____]-year limitations period. The claims are therefore time-barred.

Common New York Limitations Periods:

• Contract (written): 6 years (CPLR 213(2))
• Contract (oral): 6 years (CPLR 213(2))
• Personal injury: 3 years (CPLR 214(5))
• Fraud: 6 years from accrual or 2 years from discovery (CPLR 213(8))
• Medical malpractice: 2.5 years (CPLR 214-a)
• Defamation: 1 year (CPLR 215(3))
• Property damage: 3 years (CPLR 214(4))

2. Res Judicata

(Include if res judicata is a ground)

The doctrine of res judicata bars this action because all claims that Plaintiff is asserting, or that could have been asserted, in the prior action between the same parties have been finally adjudicated. Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347 (1999).

The elements of res judicata are:
(1) a final judgment on the merits;
(2) by a court of competent jurisdiction;
(3) between the same parties or their privies; and
(4) involving the same claim or cause of action.

All elements are satisfied here because [________________________________].

3. Release

(Include if release is a ground)

Plaintiff's claims are barred by a valid and enforceable release executed on [__/__/____] (Exhibit [____]), in which Plaintiff released all claims against Defendant arising from [________________________________]. Mangini v. McClurg, 24 N.Y.2d 556, 562 (1969).

4. Statute of Frauds

(Include if statute of frauds is a ground)

The contract(s) at issue are subject to the Statute of Frauds under General Obligations Law § 5-701 (or § 5-703 for real property) and are unenforceable because they are not evidenced by a written agreement signed by the party to be charged. The agreement alleged by Plaintiff was oral and concerns [________________________________], which is a category of contract required to be in writing.

G. CPLR 3211(a)(7) — Failure to State a Cause of Action

(Include if CPLR 3211(a)(7) is checked)

1. Standard

On a CPLR 3211(a)(7) motion, the Court must accept all facts alleged in the Complaint as true and give the plaintiff the benefit of every favorable inference. The sole question is whether the facts alleged fit within any cognizable legal theory. Sokoloff, 96 N.Y.2d at 414. Dismissal is warranted only where, even accepting all allegations as true, Plaintiff fails to state a viable cause of action.

2. Count [____] — [Name of Cause of Action]

To state a cause of action for [________________________________] under New York law, a plaintiff must allege:
(1) [________________________________];
(2) [________________________________];
(3) [________________________________]; and
(4) [________________________________].

See [New York case citation].

The Complaint fails to state this cause of action because:

a. Plaintiff fails to allege [________________________________], a required element. The Complaint's allegation in Paragraph [____] that "[________________________________]" is a bare legal conclusion, not a factual allegation.

b. The Complaint alleges [________________________________] (Complaint ¶ [____]), but this is insufficient because [________________________________].

c. Even accepting all allegations as true, Plaintiff cannot establish [________________________________] because [________________________________].

3. Count [____] — [Name of Additional Cause of Action]

[Repeat for each cause of action in the Complaint.]

H. CPLR 3211(a)(8) — Lack of Personal Jurisdiction

(Include if CPLR 3211(a)(8) is checked)

New York courts may exercise personal jurisdiction over a non-domiciliary defendant only pursuant to CPLR 301 (general jurisdiction) or CPLR 302 (long-arm jurisdiction). To exercise long-arm jurisdiction under CPLR 302, Plaintiff must show that Defendant:

(a) Transacted business within New York and the claim arises therefrom (CPLR 302(a)(1));
(b) Committed a tortious act within New York (CPLR 302(a)(2));
(c) Committed a tortious act outside New York causing injury within New York, with additional conditions (CPLR 302(a)(3)); or
(d) Owns, uses, or possesses real property situated within New York (CPLR 302(a)(4)).

In this case, this Court lacks personal jurisdiction over Defendant because:

• Defendant is not domiciled in New York (CPLR 301 general jurisdiction does not apply);
• Defendant did not transact business in New York in connection with this action (CPLR 302(a)(1));
• Defendant did not commit a tortious act in New York (CPLR 302(a)(2));
• [Additional specific reasons: ________________________________]

Furthermore, even if one of the CPLR 302 predicates were established, exercise of jurisdiction would be inconsistent with due process under the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

I. CPLR 3211(a)(11) — Arbitration Agreement

(Include if CPLR 3211(a)(11) is checked)

Plaintiff's claims are subject to binding arbitration pursuant to a valid arbitration agreement. Under CPLR 7501 and the Federal Arbitration Act (9 U.S.C. § 1 et seq.), courts must enforce valid arbitration agreements. The agreement between the parties dated [__/__/____] (Exhibit [____]) contains a binding arbitration clause at Section [____], which provides: "[________________________________]."

The claims in this action fall squarely within the scope of this arbitration clause because [________________________________]. The Court should dismiss the Complaint and compel arbitration.

IV. NEW YORK PROCEDURAL REQUIREMENTS

A. Answer Deadline and Effect of CPLR 3211 Motion

Under CPLR 320:

• If served personally in New York: Defendant must appear within 20 days of service.
• If served by other means (mail, outside New York, etc.): 30 days from service.

Effect of CPLR 3211 Motion: Under CPLR 3211(f), service of a notice of motion under CPLR 3211 extends the time to answer until 10 days after service of a copy of the order denying the motion (if denied). If the motion is granted in part, the answer must be served within 10 days after service of the partial order.

B. Timing Restrictions on CPLR 3211 Motions

See CPLR 3211(e). These waiver rules differ significantly from most other states. Analyze each ground's waiver rules separately.

C. NYSCEF Electronic Filing

New York uses the NYSCEF (New York State Courts Electronic Filing) system. In mandatory e-filing counties (which now include virtually all counties), all documents must be filed through NYSCEF at https://iapps.courts.state.ny.us/nyscef/.

Counsel must:

• Register for NYSCEF
• File the Notice of Motion, Affirmation(s), Memorandum of Law, exhibits, and proposed order through NYSCEF
• E-file all documents simultaneously with service
• Comply with court-specific requirements (individual judge preferences, part rules, etc.)

D. Individual Judge Rules

In New York Supreme Court, each judge maintains Individual Part Rules that govern motion practice in their courtroom. These rules often specify:

• Whether oral argument is available and how to request it
• Document formatting requirements
• Maximum brief length (typically 25-50 pages in Supreme Court)
• Courtesy copies requirements

Counsel must check the assigned judge's Individual Part Rules before filing.

E. Uniform Rules — 22 NYCRR Part 202

Motions in New York Supreme Court are governed by 22 NYCRR Part 202 (Uniform Rules for Supreme Court and County Court). Key provisions:

• 22 NYCRR § 202.8: Motions — generally, including requirement to mark motion papers
• 22 NYCRR § 202.8-b: Word/page limits for briefs — memoranda of law are limited to 7,000 words (approximately 20 pages) absent permission of the court
• 22 NYCRR § 202.8-g: Requirement for Rule 19-a statements in certain motions

V. PRAYER FOR RELIEF

WHEREFORE, Defendant [DEFENDANT'S FULL NAME] respectfully requests that this Court enter an Order:

1. Pursuant to CPLR 3211(a)([____], [____], [____]), dismissing Plaintiff's Complaint in its entirety, with prejudice;

2. Alternatively, dismissing the specified causes of action identified above;

3. Awarding Defendant its costs and disbursements in this action;

4. Awarding attorneys' fees to the extent authorized by statute, contract, or the Court's inherent authority; and

5. Granting such other and further relief as this Court deems just and proper.

Dated: [__/__/____]
[____________________], New York

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
    [Attorney's Full Name]
    [Firm Address]
    [City], New York [____]
    Telephone: ([____]) [____]-[________]
    Facsimile: ([____]) [____]-[________]
    Email: [________________________________]

Attorneys for Defendant [____________________]

PROPOSED ORDER

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF [____________________]

[PLAINTIFF'S FULL NAME], Plaintiff,

against                                    Index No. [____________________]/[____]

[DEFENDANT'S FULL NAME], Defendant.

ORDER GRANTING MOTION TO DISMISS PURSUANT TO CPLR 3211

Upon the Notice of Motion dated [__/__/____], the Affirmation of [________________________________], Esq. dated [__/__/____], and all exhibits annexed thereto; the Memorandum of Law submitted in support thereof; any opposition thereto; and upon argument of counsel [on [__/__/____] / on submission], and due deliberation having been had thereupon, it is hereby:

ORDERED that Defendant's Motion to Dismiss is GRANTED pursuant to CPLR 3211(a)([____]); and it is further

ORDERED that Plaintiff's Complaint is dismissed [in its entirety / as to Causes of Action numbered [____]] [with prejudice / without prejudice]; and it is further

ORDERED that [additional relief as appropriate]; and it is further

ORDERED that this Order shall be entered by the Clerk of the Court and served upon all parties with notice of entry.

ENTER:

[________________________________]
J.S.C.

CERTIFICATE OF SERVICE

I, [________________________________], certify that on [__/__/____], I electronically filed and served the foregoing Notice of Motion, Affirmation, Memorandum of Law, Exhibits, and Proposed Order upon all counsel of record via NYSCEF (New York State Courts Electronic Filing System), which constitutes service upon registered users:

Counsel for Plaintiff:
[Attorney's Full Name]
[Firm Name]
[Address]
[City], New York [____]
NYSCEF ID: [____________________]

☐ Via NYSCEF Electronic Service (registered user)
☐ Via Regular Mail (non-registered NYSCEF user)
☐ Via Electronic Mail (with consent)

[________________________________]
[Attorney's Name]

NEW YORK-SPECIFIC NOTES FOR COUNSEL

Summary of All 11 CPLR 3211(a) Grounds

Additional Key Distinctions

1. Affirmation vs. Affidavit: In New York, an attorney's sworn statement is an "Affirmation" (under CPLR 2106), not an "Affidavit." Non-attorneys must use affidavits. This distinction is critical in New York practice.

2. Proposed Order: Always include a proposed Order with motion papers in New York Supreme Court practice.

3. Word Limits: Under 22 NYCRR § 202.8-b, briefs are now subject to a word limit of 7,000 words, not page limits. Confirm the individual judge's rules as well.

4. No Demurrer: New York abolished the common-law demurrer. CPLR 3211 is the exclusive mechanism.

5. Leave to Amend: When dismissing under CPLR 3211(a)(7), courts may grant leave to amend the complaint (CPLR 3025(b)). Argue that leave should be denied as futile where appropriate.

6. Conversion to Summary Judgment: Under CPLR 3211(c), the court may treat a CPLR 3211 motion as a motion for summary judgment after giving adequate notice to all parties. This can cut both ways.

7. Affidavits May Supplement Complaint: On a CPLR 3211(a)(7) motion, plaintiff may submit affidavits to supplement the complaint's allegations. The court may consider these affidavits. Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977).

SOURCES AND REFERENCES

• CPLR 3211 (FindLaw): https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-3211
• CPLR 3211 (NYSenate.gov): https://www.nysenate.gov/legislation/laws/CVP/3211
• CPLR 3211 (NYC Courts): https://ww2.nycourts.gov/courts/nyc/civil/cplr3211.shtml
• CPLR 3211 (Justia 2025): https://law.justia.com/codes/new-york/cvp/article-32/r3211/
• 22 NYCRR Part 202 (Uniform Rules): https://www.nycourts.gov/rules/trialcourts/202.shtml
• NYSCEF Electronic Filing: https://iapps.courts.state.ny.us/nyscef/
• Grounds for CPLR 3211 Dismissal — LegalClarity: https://legalclarity.org/grounds-for-a-motion-to-dismiss-under-cplr-3211/