Part XVII Motions To Dismiss Continued Motions To Dismiss Continued

• Jurisdiction: New York

Part XVII —
Motions to Dismiss Continued

In the last issue, Part XVI of this series, the Legal Writer discussed motions to dismiss, specifically three grounds for a CPLR 3211(a) dismissal motion: other action(s) pending (CPLR 3211(a)(4)); affirmative defense(s) (CPLR 3211(a)(5)); and improper counterclaim(s) (CPLR 3211(a)(6)).

The Legal Writer discussed CPLR 3211(a)(1), 3211(a)(2), and 3211(a)(3) in Part XV of this series.

We continue with more CPLR 3211(a) grounds, with an emphasis on CPLR 3211(a)(7) motions to dismiss for failing to state a cause of action.

Failure to State a Cause of Action Under CPLR 3211(a)(7): Overview

One of the most frequently used dismissal grounds in a civil action or proceeding in New York is that a plaintiff or counterclaimant has failed to state a cause of action under CPLR 3211(a)(7). Dismissal under CPLR 3211(a)(7) is “the equivalent of the old common law demurrer (presumably long since abandoned in New York), which conceded the truth of everything pleaded but contended that, even so, the pleading stated nothing actionable under the law.”⁵⁶⁹ The demurrer’s purpose was to test a pleading’s facial sufficiency.⁵⁷⁰

Practitioners use CPLR 3211(a)(7) in one of two ways: if the pleading is defective on its face or if a party pleads perfectly a claim but “attack[s] the merits of the cause of action.”⁵⁷¹

As the moving party, you may “attack the entire complaint [or counterclaim — or the petition in a summary proceeding] or target one or more of the specific causes of action.”⁵⁷²

If you’re attacking the pleading — the complaint or counterclaim — on its face, the court will deem the pleading’s allegations to be true.⁵⁷³ The court, however, won’t accept as true “plainly incredible”⁵⁷⁴ allegations. When challenging the complaint’s or counterclaim’s facial sufficiency, “the court’s inquiry is limited to whether . . . the allegations stated any claim cognizable at law.”

If you’re attacking one or more causes of actions but not the entire complaint, the court’s inquiry “is whether the challenged claims were stated in the complaint.”⁵⁷⁵ Under CPLR 3211(a)(7), “the word ‘stated’ means pleaded.”⁵⁷⁶

On a CPLR 3211(a)(7) motion to dismiss, the court favors the nonmoving party. The court will deem the pleading to “allege whatever may be implied from its statements by fair and reasonable intendment.”⁵⁷⁷ The court will give the pleader — the plaintiff or the counterclaimant — “every favorable inference that might be drawn” from the pleading.⁵⁷⁸ The court will decide “whether the plaintiff [or counterclaimant] can succeed on any reasonable view of the facts as stated and inferred.”⁵⁷⁹

To succeed on a CPLR 3211(a)(7) motion to dismiss, the moving party “must convince the court that nothing the plaintiff [or counterclaimant] can reasonably be expected to prove would help; that the plaintiff [or counterclaimant] just doesn’t have a claim.”⁵⁸⁰

If documentary proof attached to the complaint contradicts the complaint’s allegations, a court need not accept the documentary proof as true.⁵⁸¹

Reasons to Move Under CPLR 3211(a)(7)

Move to dismiss under CPLR 3211(a)(7) if the allegations in the complaint (or counterclaim) are conclusory and have no factual support.⁵⁸²

Move to dismiss for failure to state a cause of action when the plaintiff (or counterclaimant — or the petitioner in a summary proceeding) asserts a “novel theory of recovery in an effort to expand the law.”⁵⁸³ The court will then determine whether the theory of recovery exists in New York. If the court determines that the cause of action doesn’t exist in New York, dismissal is warranted.⁵⁸⁴

If the plaintiff or counterclaimant failed to plead a necessary element of a cause of action, move to dismiss under CPLR 3211(a)(7).

Also, move under CPLR 3211(a)(7) if the plaintiff or counterclaimant failed to plead either a statutory or common-law prerequisite for recovery under a cause of action.

A court might not dismiss a complaint that’s repetitious or inartfully pleaded. But dismissal is appropriate if the complaint is drafted so poorly that the court cannot tell whether the plaintiff has stated a cause of action.

Submitting Evidence

As the movant, you may submit with the motion any form of evidence, such as affidavits or other proof.⁵⁸⁵ If your intention is to attack only the face of the complaint or counterclaim, you needn’t submit any evidence.⁵⁸⁶ When the moving party submits evidence with the motion, “the standard morphs from whether the plaintiff [or counterclaimant] stated a cause of action to whether it has one.”⁵⁸⁷

As the plaintiff (or counterclaimant), you may submit evidence of your own regardless whether the moving party attacks the facial sufficiency of your complaint (or counterclaim) or challenges its merits. If the moving party attacks the facial sufficiency of the complaint (or counterclaim), submit an affidavit to remedy any defect in your pleading.⁵⁸⁸ If the moving party attacks the merits of one or more causes of actions, provide evidence that demonstrates that you have a cause of action “as opposed to mere allegations in the complaint.”⁵⁸⁹

As the plaintiff (or counterclaimant), you might want to stand on your complaint (or counterclaim) and decline to submit affidavits in your opposition papers. You’re not required to submit an affidavit. But you might want to submit evidence to “buttress a poorly pleaded complaint or cause of action . . . or to rebut an assertion by the defendant that the plaintiff [or counterclaimant] cannot demonstrate a material fact.”⁵⁹⁰

On notice to all the parties, the court may convert a motion to dismiss to a motion for summary judgment.⁵⁹¹ If the court chooses not to convert the motion to a summary-judgment motion, the court may consider the affidavits for limited reasons: “to remedy defects in the complaint . . . or to show that . . . no serious dispute [exists] that a material fact is not a fact at all.”⁵⁹² The Legal Writer will discuss in upcoming issues what happens when a court converts a motion to dismiss to a summary-judgment motion.

Opposing a Motion Under CPLR 3211(a)(7)

Oppose your adversary’s motion in writing. As explained above, determine whether you should submit any proof in the form of affidavits or documentary evidence.

In tort actions against licensed architects, engineers, land surveyors, or landscape architects, plaintiffs must comply with CPLR 214-d and CPLR 3211(h). Under CPLR 214-d, plaintiffs must give “written notice of such claim to each . . . architect, engineer, land surveyor or landscape architect or . . . firm at least ninety days before the commencement of any action or proceeding.” In the notice of claim, you must “identify the performance, conduct or omissions complained of, on information and belief, and shall include a request for general and special damages.”⁵⁹³ Under CPLR 3211(h), the plaintiff, in opposition to a 3211(a)(7) motion to dismiss, must demonstrate that “a substantial basis in fact and in law exists to believe that the performance, conduct or omission complained of . . . was negligent.” The plaintiff must also show “that such performance, conduct or omission was a proximate cause of [the] damage complained of . . . or is supported by a...