New York Consolidated Law|SECTION 3211

                                                

  Rule 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) Stay of proceedings and standards for motions to dismiss in
certain cases involving public petition and participation. 1. 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.

2. In making its determination on a motion to dismiss made pursuant to
paragraph one of this subdivision, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon
which the action or defense is based. No determination made by the court
on a motion to dismiss brought under this section, nor the fact of that
determination, shall be admissible in evidence at any later stage of the
case, or in any subsequent action, and no burden of proof or degree of
proof otherwise applicable shall be affected by that determination in
any later stage of the case or in any subsequent proceeding.

3. All discovery, pending hearings, and motions in the action shall be
stayed upon the filing of a motion made pursuant to this section. The
stay shall remain in effect until notice of entry of the order ruling on
the motion. The court, on noticed motion and upon a showing by the
nonmoving party, by affidavit or declaration under penalty of perjury
that, for specified reasons, it cannot present facts essential to
justify its opposition, may order that specified discovery be conducted
notwithstanding this subdivision. Such discovery, if granted, shall be
limited to the issues raised in the motion to dismiss.

4. For purposes of this section, "complaint" includes
"cross-complaint" and "petition", "plaintiff" includes
"cross-complainant" and "petitioner", and "defendant" includes
"cross-defendant" and "respondent."

(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.