Court rules and requirement change frequently. Rely on SmartRules guides to keep you informed.
Note: New York Commercial Division rules have been updated since this post was written. Please see SmartRules for up-to-date guides.
Use this New York Supreme Court Motion to Dismiss “Cheat Sheet” to learn all the rules of civil procedure (in New York the CPLR) applicable to bringing a motion to dismiss in New York Supreme Court. For more detailed information, including local rules, see the SmartRules New York Supreme Court Guides for Motion to Dismiss, Response to Motion to Dismiss, and Reply in Support of Motion to Dismiss.
Motions to Dismiss in New York State Courts
(1) Document Establishes Defense. A defense exists and can be demonstrated using documentary evidence. CPLR 3211(a)(1)
(2) No Subject Matter Jurisdiction. The court lacks jurisdiction over the subject matter or the cause of action. CPLR 3211(a)(2)
(3) Plaintiff’s Incapacity. The party asserting the cause of action lacks legal capacity to sue. CPLR 3211(a)(3)
(4) Duplicate Action. There is another action pending between the same parties for the same cause of action in a court in any state in the U.S. CPLR 3211(a)(4)
In this case the court may not dismiss the action and has the discretion to enter such orders as may be just under the circumstances. CPLR 3211(a)(4)
(5) Action is Barred. The cause of action is barred by prior arbitration award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release or res judicata. CPLR 3211(a)(5)
(6) Improper Counterclaim. The cause of action is a counterclaim which may not properly be interposed in the underlying action. CPLR 3211(a)(6)
(7) No Cause of Action. The pleadings fail to state any cause of action. CPLR 3211(a)(7)
(8) Lack of Personal Jurisdiction. The court lacks personal jurisdiction over the defendant. CPLR 3211(a)(8). This ground for dismissal is waived if a party files a motion to dismiss and does not raise it, or does not raise it in the responsive pleading. CPLR 3211(e)
(9) Out of State Service Ineffective. The court lacks jurisdiction because of flawed service outside the state or by publication, or because service outside the state was used in an action for which it is not authorized. CPLR 3211(a)(9)
In a motion to dismiss based on improper service the opposing party must attach a copy of the proof of service, whether or not it was previously filed with the court. CPLR 3211(e)
This ground for dismissal is waived if a party files a motion to dismiss and does not raise it, or does not raise it in the responsive pleading. CPLR 3211(e)
(10) Failure to Join Necessary Party. A person who should be a party to the action has not been joined to the action and the court should not proceed in the absence of that person. CPLR 3211(a)(10)
(11) Immunity. The party seeking dismissal is immune from liability pursuant to the not-for-profit corporation laws. CPLR 3211(a)(11)
A party may move for judgment on one or more defenses on the ground that the defense is not stated or lacks merit. CPLR 3211(b)
Stay of Discovery
Unless the Court orders otherwise, once a notice of Motion to Dismiss is served, all discovery in the case is stayed until “determination of the motion.” CPLR 3214(b)
If the motion to dismiss is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, discovery is not stayed unless the Court orders otherwise. CPLR 3214(b)
In the Commercial Division, the court will determine, upon application of counsel, whether discovery will be stayed, pursuant to CPLR 3214(b), pending the determination of any dispositive motion. Commercial Div. R. 11(d)
Some judges have standing orders that limit, modify, or cancel the automatic stay of discovery under CPLR 3214(b)
Consult the individual justice’s rules to be sure that a Motion to Dismiss stays discovery.
Timing requirements are very specific. Staying informed of these requirements is essential to meeting deadlines. Use SmartRules to ensure that you don’t lose a case because of a technicality.
Other Motion to Dismiss Rules
Although more commonly utilized by a defendant to seek dismissal of some or all of plaintiff’s claims, a motion to dismiss may be filed by any party against whom a claim or defense has been asserted. CPLR 3211(a); CPLR 3211(b)
Whether or not the issue has been joined the court may, after adequate notice to the parties, treat a motion to dismiss as a motion for summary judgment with res judicata effect. CPLR 3211(c)
A party may not be permitted more than one motion to dismiss a claim under CPLR 3211(a). CPLR 3211(e)
After the parties have submitted all necessary and relevant papers in support of and opposition to a motion to dismiss the court may, if deemed appropriate for the expeditious disposition of the controversy, order an immediate trial as to the issues raised in the motion. CPLR 3211(c)
Preview of Motion to Dismiss Guide