Motions to Dismiss

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 239-290

Chapter 36

motions to dismiss

QUICK VIEW

Definitions: A motion to dismiss is a method by which an action or claim may be disposed of before the answer

is filed. A post-answer motion to dismiss may be brought as a summary judgment motion, or may be converted

to a summary judgment motion by the court. A motion to dismiss an affirmative defense may be made by a

plaintiff or other claimant.

Scope: Rules and techniques applicable to moving to dismiss actions and claims, opposing the motion, and

converting motions to motions for summary judgment. Rules and techniques applicable to moving to dismiss

affirmative defenses and opposing the motion. Filing formalities. Oral argument. Filing an answer. Rules for

amending and repleading.

Strategies and Tactics:

Both Parties:

• Familiarize yourself with CPLR 3211 before making or responding to a motion to dismiss.

• Determine whether the motion is timely.

• Ascertain whether the grounds for dismissal are subject to factual dispute.

• Check local rules and judge’s individual requirements for motions.

• Request oral argument, unless the judge requires oral argument anyway.

• Adhere to applicable time requirements.

Moving party:

Before deciding to move to dismiss:

• Decide whether a motion to dismiss or a summary judgment motion is appropriate.

• Determine whether to proceed by motion to dismiss or filing an answer raising affirmative defenses.

• Research the law to ascertain whether you are entitled to dismissal of the complaint, cause of

action, or defense.

• Support your motion with requisite affidavits and a memorandum of law.

• Comply with all service requirements.

Opposing party:

• Scrutinize legal grounds and supporting documents proffered by movant.

• Prepare affidavits or other evidence to negate the grounds for dismissal.

• Adhere strictly to all time requirements.

• If you need additional time, request an adjournment.

• If warranted, make a cross-motion for leave to replead or to amend the pleading.

New York Civil PraCtiCe BeFore trial 36-2

Statutes and Rules: CPLR 3211; CPLR 3024(a) (motion to correct pleadings); CPLR 327(forum non con-

veniens); CPLR 3012(b) (failure to serve complaint within 20 days after demand); CPLR 3216 (want of pros-

ecution); See also, CPLR 2214 and CPLR 2215 and Uniform Rules for Supreme and County Court (§§202.5

- 202.8) regarding motions; and CPLR 3212 regarding motions for summary judgment.

Related Topics: Summary Judgment, Ch 37; Motion Practice, Ch 16; Pleadings, Ch 15.

Forms: See digital access for the following forms:

• Form 36:10, Notice of Motion to Dismiss for Failure to State a Cause of Action

• Form 36:20, Affirmation in Support of Motion to Dismiss for Failure to State a Cause of Action

• Form 36:30, Affidavit in Support of Motion to Dismiss for Failure to State a Cause of Action

TABLE OF CONTENTS

I. Overview

A. Nature and Purpose

§36:01 To Dismiss Complaint or Cause of Action

§36:02 To Challenge Defensive Pleadings

§36:03 May Raise Multiple Grounds

§36:04 Not Applicable to Dismiss Summons with Notice

B. Distinguished from Other Motions

§36:10 Motion for Summary Judgment

§36:11 Discovery Sanctions

§36:12 Motion to Correct Pleadings

§36:13 Other Dismissal Motions

C. Advantages

§36:20 Obviates Need for Answer

§36:21 Eliminates Claims

§36:22 Eliminates Defenses

D. Disadvantages

§36:30 Early Preparation of Defenses Required

§36:31 Expense of Motion

§36:32 Plaintiff’s Opportunity to Replead

E. Governing Law

§36:40 Local Rules and Practice

§36:41 Cases

II. When to File the Motion; Waiver

A. Motion to Dismiss Complaint or Claim

1. WAIVER CONSIDERATIONS

§36:50 Waivable Dismissal Grounds

§36:51 Jurisdictional Grounds Waived if Motion Made and They Are Not Asserted

§36:52 Caveat: Don’t Lose Your Jurisdictional Defenses

§36:53 Only One Motion May Be Made

§36:54 Nonwaivable Grounds

36-3 motioNs to dismiss

2. BEFORE OR AFTER RESPONSIVE PLEADING

§36:60 Motion Should Be Made Within Time for Responsive Pleading

§36:61 Motion Made After Responsive Pleading

§36:62 IN PRACTICE: Before or After Filing Response?

§36:63 Effect of Amendment of Complaint on Motion to Dismiss

3. MOTION BASED ON IMPROPER SERVICE

§36:70 60-Day Rule

§36:71 Application of 60-Day Rule to Actions Pending on January 1, 1997

§36:72 60 Days May Be Extended for “Undue Hardship”

§36:73 “Undue Hardship” Requires More Than “Good Cause”

§36:74 “Law Office Failure” May Not Be Considered

§36:75 Five Days for Mailing Inapplicable

§36:76 Defense Raised in Amended Answer

§36:77 Effect on Third-Party Action

B. Other Dismissal Motions

§36:80 To Dismiss Defense

§36:81 For Inconvenient Forum

III. Grounds

A. Jurisdictional Objections

1. SUBJECT MATTER JURISDICTION [CPLR 3211(A)(2)]

a. General Considerations

§36:90 Purpose of the Motion

§36:91 Grounds for the Motion

b. Preemption by Federal Law

§36:100 Generally

§36:101 Areas of Federal Preemption

§36:102 Concurrent Jurisdiction

c. Claims Against the State

§36:110 Actions for Damages Against State Agencies and Officials

§36:111 Role of Sovereign Immunity

d. Nonjusticiability

§36:120 Nonjusticiable Dispute

§36:121 When Motion Is Appropriate

2. PERSONAL JURISDICTION [CPLR 3211(A)(8)]

a. Preliminary Considerations

§36:130 Challenges to Personal Jurisdiction

§36:131 Reminder: Objection May Be Waived

b. Defective Summons

§36:140 Summons Without Complaint or Notice [CPLR 305(b)]

§36:141 Summons Missing Information Required by CPLR 305(a)

c. Improper Service of Process

§36:150 Failure to Serve

§36:151 Proof

§36:152 Determination of Issue

§36:153 Motion Within 60 Days