The New York motion to dismiss: eleven grounds, one motion, and three different waiver rules

CPLR 3211 is New York's pre-answer motion to dismiss. Its list of grounds is longer than the federal equivalent, and the rule sorts those grounds into three tiers with very different consequences for leaving one out.

The grounds — CPLR 3211(a)

A party may move for judgment dismissing one or more causes of action on the ground that:

1. a defense is founded upon documentary evidence;
2. the court has no jurisdiction of the subject matter;
3. the party asserting the cause of action has no legal capacity to sue;
4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States — and here "the court need not dismiss upon this ground but may make such order as justice requires";
5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds;
6. with respect to a counterclaim, it may not properly be interposed in the action;
7. the pleading fails to state a cause of action;
8. the court has no jurisdiction of the person of the defendant;
9. the court has no jurisdiction in an action where service was made under CPLR 314 or 315;
10. the court should not proceed in the absence of a person who should be a party;
11. the party is immune from liability under Not-for-Profit Corporation Law § 720-a.

Ground 1 has no clean federal analogue. Ground 5 collects a set of defences that in federal practice would mostly be affirmative defences under Rule 8(c) rather than motion grounds — which is why a New York limitations defence is commonly raised by motion rather than in an answer.

CPLR 3211(b) runs the other direction: a party may move to dismiss one or more defenses, on the ground that a defence is not stated or has no merit.

One motion

CPLR 3211(e):

At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted.

Same single-motion discipline as FRCP 12(g)(2), Ohio Civ.R. 12(G) and CCP 430.41(b).

Three tiers of waiver

Tier 1 — waived unless raised by the motion or in the answer. Grounds 1, 3, 4, 5 and 6. Documentary evidence, capacity, another action pending, the arbitration/limitations/res judicata cluster, and improper counterclaims. Raise them in the motion or plead them; otherwise they are gone.

Tier 2 — preserved indefinitely. A motion on grounds 2, 7 or 10 — subject-matter jurisdiction, failure to state a cause of action, and absence of a necessary party — "may be made at any subsequent time or in a later pleading, if one is permitted."

Tier 3 — the 60-day trap. This one sits inside the same subdivision and catches people who did raise the objection:

an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship.

Pleading improper service and then doing nothing about it for 60 days waives it. The only relief is an extension on the ground of undue hardship.

CPLR 3211(e) exempts two categories from that sentence: proceedings to collect a debt arising out of a consumer credit transaction where a consumer is a defendant, and summary proceedings under RPAPL 711(1) or (2). It also requires that papers opposing a motion based on improper service "contain a copy of the proof of service, whether or not previously filed."

What the motion does to the answer date

CPLR 3211(f):

Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.

Ten days, running from service of notice of entry — not from the decision and not from the docket entry. Compare the federal 14 days after notice of the court's action, North Carolina's 20, and Georgia's 15.

Evidence, and conversion to summary judgment

CPLR 3211(c) is the provision that makes a New York motion to dismiss unlike a federal one:

Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion.

Three things follow.

Evidence is allowed as of right. Either party may submit summary-judgment-quality evidence on a 3211 motion. There is no conversion needed for the evidence to come in.

Conversion requires adequate notice. The court may treat the motion as one for summary judgment, but only after adequate notice. That notice requirement is the protection.

"Whether or not issue has been joined." Conversion can happen before an answer, which is not possible in the same way federally, where FRCP 12(d) conversion still leaves Rule 56's own machinery to run.

When you need disclosure to oppose

CPLR 3211(d): where it appears from affidavits submitted in opposition that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, "allowing the moving party to assert the objection in his responsive pleading, if any," or may order a continuance to permit further affidavits or disclosure, and may make such other order as may be just.

Note the first option — denial with leave to replead the objection. That is a softer landing than the federal Rule 56(d) alternatives.

Anti-SLAPP motions run through 3211(g)

CPLR 3211(g) sets a different standard for a subset of 3211(a)(7) motions. Where the moving party demonstrates that the action, claim, cross-claim or counterclaim is "an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law," the motion shall be granted unless the responding party meets the burden the subdivision sets.

So New York's anti-SLAPP protection is built into the motion-to-dismiss rule, where California's sits in a standalone statute with its own 60-day window and automatic discovery stay. Anyone comparing the two systems should not assume the mechanics carry across.

Timing the motion papers

CPLR 3211 doesn't contain its own notice schedule. CPLR 2214(b) supplies it: a notice of motion and supporting affidavits served at least eight days before the return date; answering affidavits at least two days before; and, if the notice of motion was served at least sixteen days before and demands it, answering papers at least seven days before, with reply affidavits at least one day before.

Without that 16-day demand, the movant has no reply as of right.

CPLR 2103(b)(2) adds five days for service by mail within the state, six if mailed from outside the state but within the United States.

How it fits the response sequence

Where these rules live

• CPLR 320 — Defendant's Appearance
• CPLR 2103 — Service of Papers
• CPLR 2214 — Motion Papers; Service; Time
• CPLR 3012 — Service of Pleadings and Demand for Complaint
• CPLR 3211 — Motion to Dismiss
• CPLR 3212 — Motion for Summary Judgment

The New York courts publish self-help material at nycourts.gov. This page explains what the CPLR says. It isn't legal advice.