New York Supreme Court Motion to Dismiss

Use this New York Supreme Court Motion to Dismiss introduction for an overview of Motions to Dismiss in New York Supreme Courts. For a full treatment, including local rules and requirements, see the SmartRules New York Supreme Court Guides for Motion to DismissResponse to Motion to Dismiss, and Reply in Support of Motion to Dismiss.

Note: New York Supreme Court Rules have been updated since this post was written. Please see SmartRules for up-to-date guides.

Motion to Dismiss Rules


The following grounds will support dismissal of a claim or claim(s):

Document Establishes Defense. A defense exists and can be demonstrated using documentary evidence.

No Subject Matter Jurisdiction. The court lacks jurisdiction over the subject matter or the cause of action.

Plaintiff’s Incapacity. The party asserting the cause of action lacks legal capacity to sue.

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.

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.

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.

Improper Counterclaim. The cause of action is a counterclaim which may not properly be interposed in the underlying action.

No Cause of Action. The pleadings fail to state any cause of action.

Lack of Personal Jurisdiction. The court lacks personal jurisdiction over the defendant. 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.

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.

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.

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.

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.

Immunity. The party seeking dismissal is immune from liability pursuant to the not-for-profit corporation laws.

A party may move for judgment on one or more defenses on the ground that the defense is not stated or lacks merit.

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.”

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.

In the Commercial Division, the court will determine, upon application of counsel, whether discovery will be stayed pending the determination of any dispositive motion.

Some judges have standing orders that limit, modify, or cancel the automatic stay of discovery.

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.

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.

A party may not be permitted more than one motion to dismiss a claim.

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.

SmartRules Motion to Dismiss Guides

SmartRules guides cover additional requirements, including:

Briefing Schedules

Unassigned Case requirements

Cross Motions

Moving Papers

Request for Judicial Intervention

Filing & Service

Hearing & Disposition

Originally posted April 22, 2009

Leave a Comment