Part XIX Motions To Dismiss Continued Motions To Dismiss Continued

• Jurisdiction: New York

Part XIX —
Motions to Dismiss Continued

In the last issue, Part XVIII of this series, the Legal Writer discussed motions to dismiss, specifically motions made under CPLR 3211(a)(8) through (a)(11). We continue with motions to dismiss.

Plaintiff’s Motion to Dismiss a Defense Under
CPLR 3211(b)

As the plaintiff, you may move to dismiss the defendant’s defense(s) — also called moving to strike a defense — under CPLR 3211(b).⁶⁶³ You may move to dismiss, or strike, one or more defenses, or all the defenses. Moving under CPLR 3211(b) obviates the need for a plaintiff to wait until trial to challenge a defendant’s affirmative defenses.

Under CPLR 3211(b), you may move to dismiss on the ground that a defense “is not stated or has no merit.” You may challenge a defense on its face on the basis “that it fails even to verbalize a defense — or go behind a perfectly pleaded defense to test its merit.”⁶⁶⁴ You may argue that the defendant’s defense isn’t stated and therefore that it fails as a matter of law. Or you may argue that the defendant’s defense has no merit as a matter of fact — no factual basis for the defense. Along with your motion papers, you should submit an affidavit or other evidence to show that the defense has no merit. Once you challenge a defense on a factual basis, the defendant will have the burden in its opposition papers to raise an issue to warrant a trial.

If you attack a defense on its face and argue it isn’t stated, a court will assume the truth of the allegations of the defense.⁶⁶⁵ A court will presume as true the facts that the defendant pleaded in its answer.⁶⁶⁶

If you attack the merits of a defense, you must present admissible evidence such as affidavits or other extrinsic proof that the defense doesn’t apply or is improper. The defendant will have to show facts that support its defense; the defendant will have to show that a factual dispute exists.⁶⁶⁷ The court will draw all reasonable inferences in favor of the defendant’s defense.⁶⁶⁸ The court will give a defendant’s answer “the benefit of every reasonable [interpretation].”⁶⁶⁹ The assumptions and inferences a court makes on a CPLR 3211(b) motion are similar to how a court disposes of a motion under CPLR 3211(a)(7) for failing to state a cause of action. (For more information on CPLR 3211(a)(7), see Part XVII of this series.)

When you’re moving to dismiss a defense under CPLR 3211(b), the court has the power to search the record to dismiss any cause of action.⁶⁷⁰ Even though your motion seeks to dismiss a defense in the defendant’s answer, the court may examine the complaint and dismiss it if you’ve failed to state a cause of action.⁶⁷¹ The court may dismiss the complaint even if your adversary didn’t cross-move to dismiss your complaint.⁶⁷²

Some controversy existed on whether the defense of failing to state a cause of action may be included in an answer as a defense or in a motion to dismiss.⁶⁷³ The Second Department has now adopted the First Department’s standard: Including the defense of failing to state a cause of action in an answer is “surplusage at worst and that it therefore isn’t necessary for the plaintiff to move to strike it.”⁶⁷⁴

Right to Replead

On a CPLR 3211(b) motion to dismiss a defense for insufficiency, the party whose defense is attacked will likely want a chance to replead if the court grants the motion. If you’re opposing a motion under CPLR 3211(b), specifically request in your opposition papers that the court allow you to replead if the court grants the motion. (See Part XVI of this series for information on motions for leave to replead,⁶⁷⁵ in which the Legal Writer discussed the right to replead when moving under CPLR 3211(a)(7).) The same information applies when you’re opposing a motion under CPLR 3211(b).

Converting a Motion to Dismiss to a Motion for Summary Judgment Under CPLR 3211(c)

Under CPLR 3211(c), a court may convert a motion to dismiss into a summary-judgment motion. This conversion often occurs when a party moves to dismiss under CPLR 3211(a)(7) for the plaintiff’s failure to state a cause of action or when a party moves under CPLR 3211(b) to dismiss a defense. But the court may convert a motion to dismiss to a motion for summary judgment regardless of which CPLR 3211 ground you’ve moved under.

Joinder of issue isn’t a prerequisite for a court to treat a motion to dismiss as a motion for summary judgment.⁶⁷⁶ Thus, a court may convert a pre-answer motion to dismiss into a motion for summary judgment; it may grant summary judgment before joinder of issue.⁶⁷⁷

Issue must be joined, however, before a party moves for summary judgment.⁶⁷⁸ (The Legal Writer will discuss summary-judgment motions in the next issue.) If a party moves for summary judgment before issue is joined, the court may treat the motion as a motion to dismiss and then convert it to a summary-judgment motion.⁶⁷⁹

The court may also convert an untimely motion to dismiss to a motion for summary judgment.

If a party moves to dismiss under CPLR 3211 and another party cross-moves for summary judgment, the court shouldn’t “consider [the summary-judgment motion] unless it is premised on grounds related to the motion to dismiss.”⁶⁸⁰

Once the court treats the motion as a summary-judgment motion, the court’s judgment is a judgment on the...