New York City Debt Collection Defense Attorney

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. Its aim is to expeditiously dispose of a controversy based on one or more compelling reasons.

The below is a list of New York's grounds to dismiss 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 any action in your particular case.

  • 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 which 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 that was already determined in a prior proceeding and that which 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 time period for bringing certain kinds of legal actions has lapsed or expired.

  • Statute of frauds: Certain claims require a 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; improper service; Defendant lacks sufficient contacts to be subjected to 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 as an affirmative defense the improper service of papers, CPLR § 3211(e) requires that defendant to file a motion to dismiss within 60 days of raising it in an answer.

If you have any questions, ideas, or comments, contact us.