New York Laws
Article 32 - Accelerated Judgment
R3211 - Motion to Dismiss.

(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) of
this rule, 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) of this rule 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) of this rule 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 to collect a debt arising out of a consumer
credit transaction where a consumer is a defendant or 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) of this rule is waived if a
party moves on any of the grounds set forth in subdivision (a) of this
rule without raising such objection or if, having made no objection
under subdivision (a) of this rule, he or she does not raise such
objection in the responsive pleading which, in any action to collect a
debt arising out of a consumer credit transaction where a consumer is a
defendant, includes any amended 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.