N.Y. CVP. LAW § 3211 : NY Code - Section 3211: Motion to dismiss

Search N.Y. CVP. LAW § 3211 : NY Code - Section 3211: Motion to dismiss

(a) Motion to dismiss cause of action.
    A  party may move for judgment dismissing one or more causes of action
  asserted against him on the ground that:
    1. a defense is founded upon documentary evidence; or
    2. the court has not jurisdiction of the subject matter of  the  cause
  of action; or
    3.  the  party asserting the cause of action has not legal capacity to
  sue; or
    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; the
  court need not dismiss upon this ground  but  may  make  such  order  as
  justice requires; or
    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; or
    6. with respect to a counterclaim, it may not properly  be  interposed
  in the action; or
    7. the pleading fails to state a cause of action; or
    8. the court has not jurisdiction of the person of the defendant; or
    9.  the court has not jurisdiction in an action where service was made
  under section 314 or 315; or
    10. the court should not proceed in the absence of a person who should
  be a party.
    11. the party is immune  from  liability  pursuant  to  section  seven
  hundred  twenty-a  of  the  not-for-profit  corporation law. Presumptive
  evidence of the status of the corporation, association, organization  or
  trust under section 501 (c) (3) of the internal revenue code may consist
  of  production  of  a  letter  from  the  United States internal revenue
  service reciting such determination on a preliminary or final  basis  or
  production  of  an  official publication of the internal revenue service
  listing the  corporation,  association,  organization  or  trust  as  an
  organization  described  in  such  section,  and presumptive evidence of
  uncompensated status of the defendant may consist of an affidavit of the
  chief financial officer of the corporation, association, organization or
  trust. On a motion by a defendant based upon this  paragraph  the  court
  shall  determine  whether  such  defendant is entitled to the benefit of
  section seven hundred twenty-a of the not-for-profit corporation law  or
  subdivision  six  of  section 20.09 of the arts and cultural affairs law
  and, if it so finds, whether there is a reasonable probability that  the
  specific  conduct of such defendant alleged constitutes gross negligence
  or was intended to cause the resulting harm. If the court finds that the
  defendant is entitled to the benefits of that section and does not  find
  reasonable probability of gross negligence or intentional harm, it shall
  dismiss the cause of action as to such defendant.
    (b)  Motion  to  dismiss  defense.  A  party  may  move  for  judgment
  dismissing one or more defenses, on the ground that  a  defense  is  not
  stated or has no merit.
    (c)  Evidence  permitted;  immediate  trial; motion treated as one for
  summary judgment. 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.
    (d) Facts  unavailable  to  opposing  party.  Should  it  appear  from
  affidavits  submitted  in  opposition to a motion made under subdivision

  (a) or (b) 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 to be obtained
  or disclosure to be had and may make such other order as may be just.
    (e) Number, time and waiver of objections; motion to  plead  over.  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), and
  no more than one such  motion  shall  be  permitted.  Any  objection  or
  defense  based  upon  a ground set forth in paragraphs one, three, four,
  five and six of subdivision (a) is waived unless raised either  by  such
  motion  or  in  the  responsive  pleading.  A motion based upon a ground
  specified in paragraph two, seven or ten of subdivision (a) may be  made
  at  any  subsequent time or in a later pleading, if one is permitted; 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. The foregoing sentence shall not apply in any proceeding under
  subdivision one or two of section  seven  hundred  eleven  of  the  real
  property  actions  and  proceedings  law.  The papers in opposition to a
  motion based on improper service shall contain a copy of  the  proof  of
  service,  whether  or  not  previously  filed. An objection based upon a
  ground specified in paragraph eight or nine of subdivision (a) is waived
  if a party moves on any of the grounds  set  forth  in  subdivision  (a)
  without  raising  such  objection  or if, having made no objection under
  subdivision (a), he  or  she  does  not  raise  such  objection  in  the
  responsive pleading.
    (f)  Extension  of  time to plead. 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.
    (g) Standards for motions to dismiss in certain cases involving public
  petition and participation. A motion to dismiss based on paragraph seven
  of  subdivision  (a)  of  this  section,  in  which the moving party has
  demonstrated that the action, claim, cross claim or counterclaim subject
  to the motion 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, shall be granted unless the party responding to
  the motion demonstrates that the cause of action has a substantial basis
  in law or is supported by  a  substantial  argument  for  an  extension,
  modification  or  reversal  of  existing  law.  The  court  shall  grant
  preference in the hearing of such motion.
    (h) Standards for  motions  to  dismiss  in  certain  cases  involving
  licensed  architects, engineers, land surveyors or landscape architects.
  A motion to dismiss based on paragraph seven of subdivision (a) of  this
  rule, in which the moving party has demonstrated that the action, claim,
  cross  claim or counterclaim subject to the motion is an action in which
  a notice of claim must be served on a licensed architect, engineer, land
  surveyor  or  landscape  architect  pursuant  to   the   provisions   of
  subdivision  one  of section two hundred fourteen of this chapter, shall
  be granted unless the party responding to the motion demonstrates that a
  substantial basis in law exists to believe that the performance, conduct
  or omission  complained  of  such  licensed  architect,  engineer,  land
  surveyor  or landscape architect or such firm as set forth in the notice
  of claim was negligent and that such performance,  conduct  or  omission

  was  a  proximate  cause  of personal injury, wrongful death or property
  damage complained of by the claimant or is supported  by  a  substantial
  argument for an extension, modification or reversal of existing law. The
  court shall grant a preference in the hearing of such motion.