A motion to dismiss under CPLR 3211 is a pre-answer request asking a New York court to throw out a lawsuit before the defendant has to answer the complaint. The statute lists eleven specific grounds in subdivision (a), ranging from lack of jurisdiction to a missed statute of limitations to a complaint that simply fails to state a legal claim.1New York State Senate. New York Civil Practice Law and Rules Law R3211 – Motion to Dismiss You get only one pre-answer motion, and several of these defenses are permanently lost if you don’t raise them in that motion or in your answer, so choosing the right grounds and raising them together matters as much as the grounds themselves.
The Eleven Grounds in CPLR 3211(a)
Documentary Evidence (a)(1)
A defendant can move to dismiss when clear documentary evidence flatly contradicts the plaintiff’s claim.1New York State Senate. New York Civil Practice Law and Rules Law R3211 – Motion to Dismiss Courts read “documentary” narrowly: signed contracts, deeds, official records, corporate documents. The writing has to resolve the dispute on its face. Ambiguous emails or paperwork that only partially addresses the allegations will not work, and this is where many defendants overreach.
Subject Matter Jurisdiction (a)(2)
The court lacks authority over that type of case. A federal patent dispute filed in state court is the classic example. This objection can be raised at any point and is never waived.
Legal Capacity to Sue (a)(3)
The person or entity bringing the lawsuit is not legally eligible to sue. A minor without a guardian, a dissolved corporation, or a foreign business that has not registered to do business in New York can all face this challenge. This is not about the merits of the claim; it is about whether the plaintiff can bring any claim at all.
Another Action Pending (a)(4)
The same plaintiff has already sued the same defendant over the same dispute in another court, state or federal. The judge is not required to dismiss and has discretion to “make such order as justice requires,” which can mean staying the case, consolidating the two actions, or denying the motion if the overlap is not substantial.
Statute of Limitations and Other Legal Bars (a)(5)
This is one of the broadest grounds. The statute of limitations is the most common invocation: once the filing deadline for the claim has passed, the case can be dismissed no matter how strong the underlying facts. Paragraph (a)(5) also covers:
- Res judicata — a court already decided the same dispute between the same parties.
- Collateral estoppel — a specific factual issue was already decided in a prior case and cannot be relitigated.
- Release — the plaintiff signed away the right to sue.
- Payment — the obligation has already been paid.
- Arbitration and award — the dispute was already resolved in arbitration.
- Discharge in bankruptcy — the debt was wiped out in the defendant’s bankruptcy.
- Statute of frauds — the claim rests on an agreement the law requires to be in writing, and no writing exists.
Each defense operates independently. A release alone can end a case regardless of its merits.
Counterclaim Improperly Interposed (a)(6)
This applies only to counterclaims, not to the plaintiff’s original complaint. A counterclaim can be dismissed if it does not properly belong in the action.
Failure to State a Cause of Action (a)(7)
Probably the most-filed ground. The court accepts every factual allegation in the complaint as true and asks whether the law provides a remedy if all of it happened. Suing a neighbor for rudeness fails here because rudeness is not something you can recover damages for. This ground also catches complaints that name a recognized legal claim but leave out essential elements. A negligence complaint that alleges carelessness but never explains how it caused harm fails to state a cause of action. Like subject matter jurisdiction, this defense is never waived.
Personal Jurisdiction (a)(8)
The court lacks authority over this particular defendant. If the defendant does not live in New York, does not do business here, and the events did not happen here, personal jurisdiction is likely absent. Unlike subject matter jurisdiction, this defense is waived if the defendant files a motion to dismiss on other grounds without including it, or fails to raise it in the answer.
Improper Service Under CPLR 314 or 315 (a)(9)
A narrower jurisdictional challenge that applies only when service was made by court order or on certain entities under CPLR 314 or 315. The waiver rules track those for personal jurisdiction.
Necessary Party Missing (a)(10)
Someone who ought to be a party to the case has not been joined. This objection can be raised at any time.
Nonprofit Volunteer Immunity (a)(11)
An unpaid volunteer for a qualifying nonprofit can seek dismissal when the conduct alleged does not rise to gross negligence or intentional harm. The defendant typically needs to show the organization holds tax-exempt status under IRC 501(c)(3) and that the volunteer was uncompensated.
The One-Motion Rule and Which Defenses You Can Lose
CPLR 3211(e) allows only one pre-answer motion to dismiss. File a motion raising documentary evidence as your only ground, and you cannot come back next week with a second motion adding a statute of limitations defense.1New York State Senate. New York Civil Practice Law and Rules Law R3211 – Motion to Dismiss
Several defenses are permanently waived if not raised either in that one pre-answer motion or in your answer:
- Documentary evidence (a)(1)
- Lack of legal capacity (a)(3)
- Another action pending (a)(4)
- Statute of limitations and other (a)(5) bars
- Counterclaim improperly interposed (a)(6)
Personal jurisdiction defenses under (a)(8) and (a)(9) follow a different trap. File a motion to dismiss on any ground without including the jurisdictional objection, and the jurisdictional defense is gone. Skip the motion entirely, and you must raise the objection in your answer or it is waived.
Improper service has its own deadline. If you raise an improper service defense in your answer but do not move for dismissal on that ground within 60 days of serving the answer, the defense is waived. The court can extend the deadline only for undue hardship.
Three defenses are never waived and can be raised at any time, even after the answer, even late in the case: subject matter jurisdiction (a)(2), failure to state a cause of action (a)(7), and absence of a necessary party (a)(10).
The practical takeaway: before filing, inventory every ground that might apply and put them all in the one motion, or make sure whatever you omit ends up in your answer.
Preparing and Filing the Motion
The motion requires a Notice of Motion and a supporting affidavit or affirmation. The Notice of Motion specifies the hearing time and place, the papers the motion relies on, and the relief requested.2FindLaw. New York Code CPLR 2214 – Motion Papers; Service; Time An affidavit is a sworn statement signed before a notary; an affirmation serves the same purpose but is made by an attorney under penalty of perjury without a notary. Whichever form you use, it should lay out the facts and connect them to the specific paragraph of CPLR 3211(a) you are invoking.
Attach your evidence as labeled exhibits. Relying on documentary evidence under (a)(1)? Attach the document. Arguing another action is pending? Attach the complaint and summons from that other case. Reference every exhibit in the body of the affidavit or affirmation so the judge can follow the argument.
In most New York courts, motions are filed electronically through the New York State Courts Electronic Filing (NYSCEF) system.3New York State Unified Court System. Rules – E-Filing The filing fee for a motion in Supreme Court is $45.4New York State Unified Court System. Filing Fees
Service and Timing
You must serve the motion papers on the opposing party or their attorney.5New York State Senate. New York Civil Practice Law and Rules Law R2103 – Service of Papers The minimum service window is eight days before the hearing date. To preserve your right to submit reply papers, serve the motion at least sixteen days before the hearing, which lets you demand answering papers at least seven days before, with your reply due at least one day before.2FindLaw. New York Code CPLR 2214 – Motion Papers; Service; Time
Miscount those days and the motion can be rejected before the judge reads a word of the argument. One benefit of filing on time: service of the motion extends the defendant’s deadline to answer the complaint until ten days after notice of entry of the court’s order on the motion.1New York State Senate. New York Civil Practice Law and Rules Law R3211 – Motion to Dismiss
How the Court Can Rule
After both sides submit their papers, the judge has more options than a simple yes or no.
Motion granted. The court agrees and dismisses the case, which depending on the ground can end the litigation entirely.
Motion denied. The plaintiff’s case has enough legal merit to proceed. The defendant then has ten days after being served with notice of entry of the order to file an answer.
Dismissed with leave to replead. The judge finds the complaint legally deficient but believes the problems are fixable. The plaintiff gets permission to file an amended complaint, and New York courts are generally liberal about allowing amendments. The proposed amended complaint must clearly show what changes are being made.6New York State Senate. New York Civil Practice Law and Rules Law R3025 – Amended and Supplemental Pleadings
Conversion to summary judgment. Under CPLR 3211(c), the court can treat the motion as a motion for summary judgment after giving adequate notice to both sides, or order an immediate trial of the issues raised. Conversion catches parties off guard when they have treated the motion as a narrow procedural challenge and suddenly face a final decision on the merits. If the court signals it may convert, take the notice seriously and submit everything you have.