Motion for Partial Dismissal in New York

Background

The defending party may choose to file a partial motion to dismiss when it cannot show cause for dismissing the entire complaint. A partial motion to dismiss is subject to the same rules and authority as a motion to dismiss. The bases for which a party may move to dismiss a cause of action can be found in New York CPLR Section 3211.

“A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” (See CPLR 3211(b).)

The court may treat the partial motion to dismiss as a partial motion for summary judgment. (Showcase Homes, Ltd. v. Kontogiannis, 114 A.D.2d 891, 495 N.Y.S.2d 64 [2d Dept 1985]; CPLR 3211(c) (“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.”).)

How to Structure the Motion

The movant should serve a notice of the partial motion to dismiss and an attorney’s affidavit or affirmation in support of the motion. (Bruno v. New York News, Inc., 68 A.D.2d 987, 414 N.Y.S.2d 813 [3d Dept 1979] (holding that the failure to provide a supporting affirmation or an answer precluded the granting of a motion to dismiss for failure to state a cause of action).)

The Court’s Decision

If moving under CPLR 3211(a)(7), failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory. (See Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 864 N.Y.S.2d 70 [2d Dept 2008], citing Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 974 [1994].)

The criteria is whether the proponent of the pleading has a cause of action, not whether he has stated one. (See EBCI. Inc. v. Goldman Saks, 799 N.Y.S.2d 170 [2005].) The “plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face.” (See Miqlino v. Bally Total Fitness of Greater N.Y, Inc., 20 N.Y.3d 342, 351 [2013].) Bare legal conclusions and factual allegations contradicted by the record, however, are not presumed to be true, nor are they accorded every favorable inference. (Riback v. Margulis, 43 A.D.3d 1023, 1023, 842 N.Y.S.2d 54, 55 [2d Dept 2007].) Where the factual allegations fail to support a cognizable cause of action, the court must dismiss the pleading pursuant to CPLR 3211(a)(7). (See DeSouza v. Sbarro, Inc., 221 A.D.2d 309, 635 N.Y.S.2d 475 [2d Dept 1995].)

A motion to dismiss under CPLR 3211(a)(1) based on documentary evidence is to be granted only if “the documentary evidence utterly refutes plaintiff[s'] factual allegations, conclusively establishing a defense as a matter of law.” (McCully v. Jersey Partners, Inc., 60 A.D.3d 562, 562 [1st Dept 2009].)

Timeline

The partial motion to dismiss must be filed before an answer. (See CPLR 3211(e).) Serving a notice of a motion to dismiss before service of a responsive pleading extends the time to serve the pleading until 10 days after service of notice of entry of the order on the motion. (CPLR 3211(b).)The moving party may request an extension of time under CPLR 2004. (CPLR 2004 (“[T]he court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”).)