R 3211.Motion to dismiss.

A litigant against whom claims have been alleged in a pleading may seek to dismiss one or more of such claims as failing to state a cause of action. CPLR 3211(a)(7). Analogously, a litigant may seek to dismiss one or more defenses. CPLR 3211(b).

Under current law, if such a motion is made, .

if the opposing party desires leave to plead again in the event the motion is granted, he shall so state in his opposing papers and may set forth evidence that could properly be considered on a motion for summary judgment in support of a new pleading; leave to plead again shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action or defense; the court may require the party seeking leave to plead again to submit evidence to justify the granting of such leave. CPLR § 3211(e) The effect of the quoted material is to force the careful pleader to treat a motion which is solely directed to the sufficiency of a pleading as a matter of law - the common law demurrer - as a motion for summary judgment, and to produce evidence to support the challenged claim. This is contrary to the doctrine of Rovello v. Orofino, 40 N.Y.2d 633 (1976), which permits the party seeking dismissal of the claim or defense to elect whether to attack the pleading on the law, or to seek immediately a substantive victory on a claim that the pleader has no viable cause of action or defense.

Further, the requirement of the rule 3211(e) that the pleader request leave to replead in the opposing papers, if enforced literally, creates a trap for the unwary. This requirement, which has no analogue in Federal practice and is buried deep in one of the longest paragraphs in the CPLR, has been overlooked in a substantial number of cases, and has recently caused courts to have to struggle to read into an apparently absolute provision the ability of courts to relieve pleaders of their omission of the request for leave to replead. See, eg., Sanders v. Schiffer, 39 N.Y.2d 727, 729, and compare Bardere v. Zafir, 63 N.Y.2d 850, 852.

The Committe believes that the present wording of rule 3211(e) cause unnecessary litigation expense and complexity without any countervailing benefit, and invites the inadvertent jeopardizing of a litigant’s rights if counsel is unaware of the requirement to request leave to replead. In the case of a pro se pleader, the chances that such a pleader will fail to request leave as an initial matter are very high.

Subd (a) of this rule allows a motion preliminary to answer, with or without supporting proof, asserting specified objections which, if sustained, will dispose of the action. Such motions were formerly provided for in RCP 106, 107, 109 and 110. Subparagraph 7, operating in conjunction with subd (e) of this rule, reflects a middle view between the

the feeling of some bar association committees that, despite abuses, such motions often perform a valuable function in permitting a party to have a defective pleading dismissed before being required to frame a responsive pleading and perhaps submit to disclosure proceedings unjustifiably extended by the scope of the defective pleading. As to the other specific objections enumerated in this subdivision, there is good reason to continue the former provisions for a preliminary motion (RCP 107, 110) and, indeed, to expand them. Unlike the objection of failure to have a cause of action, these do not require preparation of the whole case. As separable and easily demonstrable bars to an action, they may often save a lawyer considerable time and effort preparing an answer in a complicated case. There is little danger that they will delay the litigation since, by their nature, they are difficult to fabricate and raise issues that are relatively easily resolved. The former New York provisions have been highly praised by commentators. See, e.g., Millar, Civil Procedure of the Trial Court in Historical Perspective 250–52 (1952); Atkinson, Pleading the Statute of Limitations, 36 Yale LJ 914, 930–32 (1927). Similar provisions exist in Illinois and Michigan. Ill Ann Stat c 110, § 48 (Smith-Hurd Supp 1955); 6A Mich Comp Laws Annotations, app 4, Court Rule 18 (1948). This rule abolishes the motions directed to the legal sufficiency of a pleading on its face under former rules 109(5), 109(6), 111 and 112. To the objections formerly enumerated, this subdivision adds a new subparagraph 1 for defenses founded upon documentary evidence, and the defenses of estoppel, arbitration and award and discharge in bankruptcy in subparagraph 5. The latter were chosen because they represent affirmative defenses that are usually easily established. Discharge in bankruptcy is an enumerated objection in the analogous Illinois provision, but this subdivision has not adopted the phrase “other affirmative matter,” used in Illinois. Although subparagraph 5 includes the most common defenses founded upon documentary evidence, subparagraph 1 is added to cover all others that may arise as for example, a written modification or any defense based on the terms of a written contract. In subparagraph 4, the words “in a court of any state or the United States” have been added to the former formulation (RCP 106(3)) in order to do away with the anomalous doctrine that an action in another state is not “another action pending” within the meaning of the rule. See Squier v Houghton, 131 Misc 129, 226 NY Supp 162 (Sup Ct 1927). Preliminary motions dealing with venue, jurisdiction over the person, misjoinder and nonjoinder of parties are treated in the provisions specifically governing those matters. Subparagraph 2 deals only with jurisdiction over the subject matter and subparagraphs 8 and 9 to cover jurisdiction over the person and in rem or quasi in rem jurisdiction.

Subparagraph 10 covers the objection of nonjoinder; the rule that this objection is nonwaivable has been placed in subd (e) of this rule.

Subd (b) of this rule derives from CPA § 109(6) and is a corollary to the motion to dismiss a claim in subparagraph 7 of subd (a).

Subd (c). As to the evidence permitted, former rules 107 and 110 mentioned only affidavits, but it was clear that the motion was in essence one for summary judgment. The second sentence of subd (c) of this rule continues the former provision of rule 108 which permitted the court to direct an immediate trial of the issues raised. As to the specified defenses, it makes possible an accelerated judgment even though a genuine issue of fact exists which would defeat a motion for summary judgment. The Illinois and Michigan provisions analogous to former rules 107 and 110 allow such a preliminary trial except where a jury trial is required. See Note, 33 Chi-Kent L Rev 191 (1955). The procedure seems worthy of retention, although courts are sometimes reluctant to use it because of the fear of two separate trials if the determination is against the moving party. See, e.g., Rizzuto v U. S. Shipping Board Emergency Fleet Corp. 213 App Div 326, 210 NY Supp 482 (2d Dep’t 1925); Gordon v Prishkoff, 67 NYS2d 373 (Sup Ct 1946), aff’d 272 App Div 872, 72 NYS2d 402 (1st Dep’t 1947). A trial on any of the enumerated objections will usually be short; if it is before the court, it will require little more time than the motion itself. As often as not, it will result in a speedy disposition without calendar delay or the necessity of trying the whole case. The subdivision includes motions under subd (b) of this rule.

Subd (d) of this rule is patterned after Federal rule 56(f). Former rule 108 permitted the court, in its discretion, to deny the motion and “allow the same facts to be alleged in the answer as a defense.” Although the former rule offered no criteria for exercise of this discretion, it undoubtedly covered the situation where the facts were then unavailable to the opposing party. This subdivision goes beyond this, allowing the court to retain the motion while permitting disclosure. Further, under the power to make “such other order as is just,” it is contemplated that the court could require service of an answer during the continuance for disclosure and thereafter treat the motion as one for summary judgment.

Subd (e) of this rule is designed to prevent the delay before answer that could result from a series of motions under this rule. With only a relatively short period ordinarily required for disposition of this motion, there is no serious need for allowing subsequent motions based on newly discovered evidence. In any event, the party will lose no rights by failing to move or to include all available grounds in his motion, for he still may assert in his answer or reply any defense or objection not raised by motion.

The waiver provision does not change former law. Affirmative defenses formerly might not be proved unless pleaded. See 4 Carmody-Wait, Cyclopedia of New York Practice 374 (1953).

CPA § 278 provided for waiver of certain of the enumerated objections if they were not taken by motion; the purpose of that section, however, was merely to preserve the common law doctrine that dilatory pleas and pleas in abatement are waived unless claimed before trial. Thus, the doctrine is satisfied by the provision that they are waived unless claimed by motion or answer. Provisions relating to time have been inserted. Rule of nonwaiver of objection of legal insufficiency, corresponding to that in CPA § 279, added because of inclusion of such motions in this rule and similar rule as to nonjoinder included in this rule. This subdivision which is a modification of CPA § 279 has been redrafted since its preliminary draft by the committee to accord more closely with the intention of the Joint Committee of the State Bar Association, the Association of the Bar of the City of New York, and the New York County Lawyers Association. See Weinstein, Proposed Revision of New York Civil Practice, 60 Colum L Rev 50, 74 (1960). See also note, 60 Colum L Rev 1015, 1029 (1960). The rule is very flexible as now drafted. If the judge hearing the motion wishes, he may insist that the party seeking leave to amend furnish him and the opponent with a proposed new pleading which can be considered in the light of the argument on the motion to dismiss and the information, if any, set forth in the opposing papers. The test of “good ground to support” is the same as that in the certification rule, CPLR § 3020(c).

Subd (f) of this rule follows the former law. CPA § 283. It will not operate to relieve a party’s default if his time to plead expired before a motion was made, absent a stipulation or court order extending his time. It takes account of the provisions in subd (e) allowing motions on some grounds after the responsive pleading is required.

Add, L 1962, ch 308; amd, L 1965, ch 773, § 9, eff Sept 1, 1965; Judicial Conference 1973 Proposal No 4, eff Sept 1, 1973; L 1986, ch 220, § 12; L 1990, ch 904, § 26; L 1991, ch 656, § 4, eff July 26, 1991; L 1992, ch 767, § 4, eff Jan 1, 1993; L 1996, ch 501, § 1, eff Jan 1, 1997; L 1996, ch 682, § 2, eff Oct 1, 1996; L 1997, ch 518, § 2, eff Sept 3, 1997; L 2005, ch 616, § 1, eff Jan 1, 2006; L 2020, ch 250, § 3, effective November 10, 2020; L 2021, ch 593, § 8, effective May 7, 2022.