CPLR 3211(a) (7): demurrer or merits-testing device?

• Author: Higgitt, John R.
• Position: New York Civil Practice Law and Rules

New York Civil Practice Law and Rules ("CPLR") 3211 is one of the most important and frequently used procedural devices in civil actions. The statute allows a defendant (1) to seek dismissal of some or all of the causes of action asserted against it before it answers the action. (2) Subdivision (a) of the statute lists the specific grounds on which a defendant may seek dismissal. (3) CPLR 3211(a)(7) is home to arguably the most popular ground for pre-answer dismissal: failure to state a cause of action. (4) Query: can a defendant submit affidavits in support of its motion to dismiss under CPLR 3211(a)(7) and attack the merits of the plaintiffs pleadings? The answer to this query dictates the standard a court will employ in reviewing the motion. The extensive case law regarding the effect of a defendant's affidavits on a CPLR 3211(a)(7) motion is not consistent. This article will review both the law prior to CPLR 3211 and the legislative history of that statute, survey the case law construing CPLR 3211(a)(7), and provide a picture of the current state of the law on this subject.

1. PRIOR LAW & LEGISLATIVE HISTORY

   Prior to the advent of the CPLR in September 1963, (5) civil procedure in New York was governed by the Civil Practice Act. Rule 106(4) of the Act provided a motion to dismiss for failure to state a cause of action. (6) Under that rule, a defendant could not submit affidavits in support of its motion--the defendant was allowed only to challenge the facial sufficiency of the plaintiffs pleading. (7) If, accepting the truth of the allegations and according the plaintiff the benefit of every reasonable inference, the court concluded that the plaintiff stated a cause of action cognizable at law, the defendant's motion was denied. (8) Moreover, courts rarely granted rule 106(4) motions without granting plaintiffs leave to replead, and plaintiffs had no obligation to support new allegations with evidence. (9) Rather, new allegations could be perfunctorily supplied by a plaintiff however baseless those allegations may have been. (10) Thus, the motion to dismiss for failure to state a cause of action under the Civil Practice Act generally resembled the traditional equity demurrer, (11) and while the motion often assisted defendants in obtaining more informative and technically correct pleadings, it rarely led to the disposition of cases.(12)

   The Advisory Committee on Practice and Procedure, appointed to modernize civil practice, authored a series of reports between 1957 and 1962 that provide the effective legislative history of the CPLR. (13) In its First Report, the Committee concluded that the motion to dismiss for failure to state a cause of action under Civil Practice Act 106(4) was ineffective in terminating groundless suits. (14) The Committee was also concerned with the delay caused by that motion. The limited office of the motion as a tester of the facial sufficiency of a pleading, coupled with the liberality with which leave to replead was granted, promoted rounds of rule 106(4) motions and amended pleadings but did not reveal the facts underlying an action. (15) Accordingly, the Committee recommended omitting from the CPLR the motion to dismiss for failure to state a cause of action and requiring a challenge to the legal sufficiency of a pleading to be made after the joinder of issue by a summary judgment motion. (16) In the Committee's view, this proposal would have eliminated the delay that was promoted by the motion to dismiss under rule 106(4); responsive pleadings would be served after service of the initiatory papers, disclosure conducted, and summary judgment, where appropriate, granted based on the actual facts of the controversy developed through disclosure. (17)

   That was all from the First Report. Approximately four years after that report was issued, the Committee offered its Fifth Report, (18) in which it modified its proposal omitting from the CPLR the motion to dismiss for failure to state a cause of action. The Committee added as a ground for pre-answer dismissal that "the pleading fail[ed] to state a cause of action"; (19) it also added a proposal to subdivision (e) (20) of the motion to dismiss statute imposing certain burdens on a plaintiff seeking leave to replead in response to a motion to dismiss for failure to state a cause of action. A plaintiff desiring leave to replead was required to (1) request leave in its papers in opposition to the motion; and (2) submit evidence that could be considered on a motion for summary judgment demonstrating that the plaintiff had a cause of action. (21) The failure to state a cause of action provision and revised subdivision (e) of the statute:

   reflect[ed] a middle view between the original proposal that the motion to dismiss for legal insufficiency should be abolished, and the feeling of some bar association committees that, despite abuses, such motions often perform a valuable function in permitting a party to have a defective pleading dismissed before being required to frame a responsive pleading and perhaps submit to disclosure proceedings unjustifiably extended by the scope of the defective pleading. (22) "[T]he liberality with which leave [was] granted to plead over without any showing that a legally sufficient claim exist[ed]" was eliminated, (23) giving a dismissal under the failure to state a cause of action ground some bite. (24) The Legislature adopted these proposals in enacting the original CPLR, (25) however, the version of subdivision (e) that it passed did not require a plaintiff to support its new pleading with evidence. (26) Rather, CPLR 3211(e) provided that a plaintiff could submit evidence supporting that pleading and that a court could require the plaintiff to do so to ensure that the plaintiff had "good ground to support" the challenged cause of action. (27)

   At bottom, the Committee's reports indicate the following: (1) that the Committee wanted to omit from the CPLR the pre-answer motion for failure to state a cause of action; (2) that multiple bar associations wanted the motion to dismiss for failure to state a cause of action to be included in the CPLR; and (3) that, as a compromise, failure to state a cause of action was included as a ground for a pre-answer motion to dismiss, but requirements were imposed for leave to replead. Nothing in the reports, however, indicate that the failure to state a cause of action motion that was inserted in the CPLR was anything other than the motion that had existed under the Civil Practice Act--the common law demurrer. The Committee contemplated only a motion for failure to state a cause of action that resembled the demurrer and a motion for summary judgment. (28) "Speaking motions," i.e., motions to dismiss for failure to state a cause of action supported by evidence, (29) were not discussed in the Fifth Report, and the only discussion in that report of evidence on the motion to dismiss for failure to state a cause of action came in the context of the modification to subdivision (e) suggesting that a plaintiff seeking leave to replead be required to submit evidence supporting its new pleading.

   This interpretation of the legislative history of CPLR 3211(a)(7) is not shared by all. The leading commentator on New York civil procedure, Professor David Siegel, has concluded to the contrary, finding that the drafters of the CPLR intended that a defendant could submit affidavits on a motion to dismiss for failure to state a cause of action and challenge the allegations in the complaint. (30)

   CPLR 3211(c), also part of the original CPLR, does not appear to support the conclusion that a court may grant a defendant's motion to dismiss for failure to state a cause of action based on affidavits the defendant submitted. (31) While that statute permits any party on a motion to dismiss to "submit any evidence that could properly be considered on a motion for summary judgment," it does not expressly authorize a court to consider affidavits for the purpose of granting a motion to dismiss for failure to state a cause of action. (32) Rather, after stating that the parties may submit evidence on a CPLR 3211(a)(7) motion, subdivision (c) provides that a court, after giving notice to the parties, may treat the motion to dismiss as one for summary judgment. (33) Reading subdivisions (c) and (e) together and in a manner that gives each effect, (34) subdivision (c) allows (1) a defendant to submit affidavits to aid the court in ascertaining whether it should convert the motion to dismiss into one for summary judgment, (35) and (2) a plaintiff to submit affidavits to remedy pleading deficiencies and salvage the challenged cause of action. This interpretation is consistent with both the Committee's view, as expressed in its Fifth Report, that the motion to dismiss for failure to state a cause of action resemble the common law demurrer and that a plaintiff should be required to provide evidentiary support for new pleadings, (36) and the principle that "[w]hether a ... plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss [for failure to state a cause of action]." (37)

2. CASE LAW

   The Court of Appeals' seminal treatment of CPLR 3211(a)(7)

   occurred in 1976 in Rovello v. Orofino Realty Co. (38) The issue before the Court in Rovello was "whether a motion court may grant judgment under CPLR 3211 (subd. (a), par. 7), without treating the pleading motion as one for summary judgment, when the complaint is sufficient on its face, but the affidavits submitted indicate, not quite conclusively, that [plaintiff] may have no cause of action." (39) The Court stated that:

   CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212 when defendant has made an evidentiary showing that refutes the pleaded cause of action. If plaintiff chooses to stand on his pleading alone...