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Legal Grounds for a Motion to Dismiss: New York

Litigation is litigation. Whether the subject matter is a $2,000 credit-card debt or a catastrophic personal injury case, the same basic procedural rules apply.

The motion to dismiss is used to stop a lawsuit in its tracks. It aims to expeditiously dispose of a controversy based on one or more compelling reasons.

Below is a list of New York's grounds for dismissing a lawsuit. It closely resembles — and slightly expands upon — CPLR § 3211(a). As always, you should read the law carefully and consult an attorney before taking action in your case. At the bottom is a quiz to test your basic understanding if you wish to test your knowledge. 

  • A defense founded upon documentary evidence: Used when a party possesses case-determinative documentation, such as a contract, report, letter, or other document that amounts to a fatal admission or a clear declaration of rights. While the word "document" is not defined in this statute, the law requires it to be unambiguous and undeniable.

  • The court lacks subject matter jurisdiction: Used when the court is not empowered to adjudge a dispute (i.e., federal law versus state law; criminal court versus state court; designated venues for suits against municipalities).

  • No legal capacity: Although "legal capacity" is not defined in the statute, examples include infancy, incompetence, standing, and unmet statutory conditions (i.e., required licenses, substitution after death, or bankruptcy).

  • Another action pending between the same parties: Used when a pending action exists in New York, in a sister state, or in federal court that involves identical or substantially similar parties and claims.

  • Arbitration and Award: The subject matter was already arbitrated and reduced to an award.

  • Collateral estoppel: An issue or controverted point already determined in a prior proceeding and may not be re-litigated. The non-moving party needed ample opportunity to raise all legal and factual claims concerning the issue in the prior litigation.

  • Discharge in bankruptcy: The cause of action was discharged in bankruptcy. But a discharge may not automatically vacate or resolve a judgment or lien.

  • Infancy or other disability: When age or other legal disability amounts to a defense to the claim.

  • Payment: An actual payment of money that resolves the dispute.

  • Release: A valid written release that covers the claim at issue.

  • Res judicata: Bars future litigation to a claim already litigated by the same parties.

  • Statute of limitations: The prescribed period for bringing certain legal actions has lapsed or expired.

  • Statute of frauds: Certain claims require writing. If a party does not produce it, the claim is subject to dismissal. Required writings include real estate contracts, financial contracts, health insurance policy assignments, debt guarantees, and services to be performed over a year's time.

  • Dismissing improper counterclaims: Those that are disallowed under code or law (i.e. UCC restriction of counterclaims against assignees; New York common law restricting counterclaims against the NYS for money damages where proper forum is the Court of Claims, or waived by contract).

  • The complaint fails to state a cause of action: When a complaint lacks enough factual content to state or infer a legally cognizable claim. The court accepts the allegations as true and affords the non-movant all favorable inferences.

  • The court lacks personal jurisdiction: The summons lacks required information such as venue or residence and improper service; the Defendant lacks sufficient contacts to be subjected to the court's authority.

  • The court lacks jurisdiction where service was made under CPLR §§ 314 or 315: When a defendant challenges in rem jurisdiction (court's jurisdiction over property) or quasi in rem jurisdiction (court's attachment of Defendant's property to obtain jurisdiction over Defendant) versus in personam jurisdiction (personal jurisdiction over Defendant).

  • The court lacks a necessary party: When a necessary party cannot be made a party to the action, and the action cannot proceed in the absence of the party. The party becomes an "indispensible party" when this rule is used together with CPLR § 1003. This rule is demanding and rarely used.

  • Immunity under Not-for-Profit Corporation law: Unpaid officers and directors of not-for-profit corporations are immunized from liability absent gross negligence or intent to harm.

Some of these defenses require you to raise them early or risk waiving them. For example, in cases where a defendant alleges the improper service of papers as an affirmative defense, CPLR § 3211(e) requires that the defendant file a motion to dismiss within 60 days of raising it in an answer.

10 Things You Should Know About a Motion to Dismiss

  1. Strategic Use: Attorneys sometimes use motions to dismiss to end a case early and gain insights into the opposing party's arguments and strategies.

  2. No Evidence Consideration: In many jurisdictions, courts cannot consider evidence outside the complaint when considering a motion to dismiss. They must assume the truth of the complaint's factual allegations.

  3. Conversion to Summary Judgment: If evidence outside the complaint is presented and considered in a motion to dismiss, the motion can be "converted" into a motion for summary judgment in some jurisdictions.

  4. Multiple Motions: Depending on the jurisdiction and the specifics of a case, a defendant might be able to file more than one motion to dismiss if new information or grounds arise.

  5. Tolling the Statute of Limitations: In some jurisdictions, if a case is dismissed without prejudice, the statute of limitations might be tolled, meaning the plaintiff could have additional time to refile the case.

  6. Mandatory vs. Permissive Grounds: Some grounds for dismissal are mandatory, meaning the court must dismiss the case if they apply. Others are permissive, allowing but not requiring dismissal.

  7. Waiver of Grounds: In some jurisdictions, if a defendant doesn't include all possible grounds for dismissal in their initial motion, they might waive the right to raise those grounds later.

  8. Effect on Appeals: A dismissal with prejudice is typically considered a final judgment and can be appealed. A dismissal without prejudice might not be considered final, affecting the ability to appeal.

  9. Automatic Stay: In some jurisdictions, when a motion to dismiss is filed, certain proceedings in the case are automatically stayed or paused until the motion is resolved.

  10. Potential for Sanctions: If a motion to dismiss is found to be frivolous or intended solely for delay, the party filing the motion (or their attorney) might face sanctions.

It's essential to consult with legal counsel in the relevant jurisdiction to understand the specific rules and nuances related to motions to dismiss. If you need help, complete this intake form.

What Else is Covered in New York's Motion to Dismiss Statute?

New York's Civil Practice Law and Rules (CPLR) 3211 contains several additional provisions related to motions to dismiss:

  1. Motions can be made to dismiss defenses on the grounds that they lack merit or are not properly stated. (3211(b)).
  2. The court may consider evidence that would be admissible in a summary judgment motion and can treat the motion as one for summary judgment after notifying the parties. (3211(c)).
  3. If the opposing party cannot fully justify their opposition to the motion, the court may deny the motion or order a continuance to allow more time to obtain evidence. (3211(d)).
  4. Objections based on certain grounds are waived if not raised in the motion or responsive pleading, with some exceptions. Time limits apply for moving for judgment based on improper service. (3211(e)). For example, 60 days to seek dismissal for bad service.
  5. Filing the motion extends the deadline to file a responsive pleading until 10 days after the order on the motion. (3211(f)).
  6. Special standards apply to motions to dismiss lawsuits involving public petition and participation (anti-SLAPP suits). Discovery is stayed and the plaintiff must show the case has a substantial basis in law. (3211(g)).
  7. A similar substantial basis standard applies to motions to dismiss professional malpractice claims against architects, engineers, surveyors and landscape architects. (3211(h)).

Motion to Dismiss-Quiz

Quiz: Understanding Motions to Dismiss in New York Litigation

What is the primary purpose of a motion to dismiss?
A. To request more evidence
B. To extend the trial date
C. To stop a lawsuit early
D. To change the venue of the trial

Which of the following is a ground for dismissal based on documentary evidence in New York?
A. Lack of witnesses
B. Insufficient evidence
C. Possession of case-determinative documentation
D. Inconclusive forensic reports

What does 'lack of subject matter jurisdiction' mean in the context of a motion to dismiss?
A. The court is not authorized to hear the case
B. The subject matter is irrelevant to the case
C. The evidence is insufficient for the subject matter
D. The subject matter is too complex for the court

What does 'collateral estoppel' prevent in legal proceedings?
A. Introduction of new evidence
B. Re-litigation of an already determined issue
C. Cross-examination of witnesses
D. Submission of documentary evidence

Under what condition can a lawsuit be dismissed due to 'infancy or other disability'?
A. When the plaintiff is a minor
B. When the defendant is a minor
C. When either party has a legal disability
D. All of the above

What is the effect of a 'release' in the context of a motion to dismiss?
A. It increases the burden of proof
B. It acts as a valid reason to continue the lawsuit
C. It serves as a valid ground for dismissal
D. It changes the nature of the lawsuit

How does the 'statute of limitations' affect a motion to dismiss?
A. It refers to the time limit for filing the motion
B. It is irrelevant to the motion
C. It refers to the time limit for bringing the legal action
D. It dictates the duration of the trial

What happens if a defendant fails to raise all possible grounds for dismissal in their initial motion?
A. They can introduce them later in the trial
B. They might waive the right to raise those grounds later
C. It has no effect on the case
D. The case is automatically dismissed

What can happen if a motion to dismiss is found to be frivolous?
A. The case is immediately dismissed
B. The party filing the motion might face sanctions
C. The motion is automatically converted to a summary judgment
D. The plaintiff is awarded damages

What is a key strategic use of a motion to dismiss by attorneys?
A. To prolong the case
B. To gain insights into the opposing party's arguments
C. To increase legal fees
D. To change the judge in the case


  1. C
  2. C
  3. A
  4. B
  5. D
  6. C
  7. C
  8. B
  9. B
  10. B

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