A New York Motion to Dismiss is a request made to a court, typically by a defendant, to have a case dismissed due to a lack of evidence. It is also known as an Insufficiency Motion, and can be used when a plaintiff has not provided enough factual allegations to support the claim. The motion relies on the legal principle that a court is not obligated to hear a case that does not contain the necessary elements to make a claim. The most common type of New York Motion to Dismiss is the CPR 3211 Motion, which is based on the state’s Civil Practice Law and Rules. This motion is used to challenge the legal sufficiency of a complaint, and may be granted when the complaint fails to state a cause of action or is otherwise legally insufficient. It may also be used to challenge the legal sufficiency of affirmative defenses, counterclaims, or cross-claims. Another type of New York Motion to Dismiss is the CPR 3212 Motion. This motion is used to challenge the factual sufficiency of a complaint, and may be granted when the plaintiff’s factual allegations are insufficient to support the claim. A CPR 3212 Motion may also be used to challenge the factual sufficiency of affirmative defenses, counterclaims, or cross-claims. Finally, a New York Motion to Dismiss may also be used to challenge the jurisdiction of a court over a particular case. This motion is based on the legal principle that a court must have the proper authority to hear a case before it can do so. If the court does not have the jurisdiction to hear a case, then the motion may be granted and the case dismissed.
New York Motion to Dismiss - insufficiency etc
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How to fill out New York Motion To Dismiss - Insufficiency Etc?
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FAQ
In New York Supreme Court actions (other than actions in the Commercial Division) discovery is generally available after the defendant interposes its answer. If the defendant serves a pre-answer motion to dismiss, however, then discovery is generally stayed until that motion is decided.
In New York state court, where the Civil Practice Law and Rules (CPLR) offers more flexibility than the Federal Rules of Civil Procedure, CPLR 3211(a)(1) permits a defendant to introduce on a motion to dismiss documents that ?utterly refute? allegations in a complaint, but it is not boundless.
The CPLR 3126(3) motion to strike a pleading is premised upon establishing a willful failure to disclose; obviously, a movant's regular and documented efforts to coax compliance must found the motion.
A timely motion to dismiss pursuant to CPLR §3211(a) extends the Defendant's time to serve the answer until 10 days after an order issued by the court has been entered and notice of entry has been provided. Entry means that the court's order on the motion has been signed and filed with the County Clerk.
Motions to dismiss are made for many different reasons. For example, if the defendant didn't get the summons and complaint the right way, he or she can ask the court to dismiss the case. (See Examples of Bad Service). Or, if the plaintiff started the case in the wrong court or county, the court will dismiss the case.
In New York state court, where the Civil Practice Law and Rules (CPLR) offers more flexibility than the Federal Rules of Civil Procedure, CPLR 3211(a)(1) permits a defendant to introduce on a motion to dismiss documents that ?utterly refute? allegations in a complaint, but it is not boundless.
Although more commonly utilized by a defendant to seek dismissal of some or all of plaintiff's claims, a motion to dismiss may be filed by any party against whom a claim or defense has been asserted.
A motion to dismiss challenges the sufficiency of the complaint, while a motion for summary judgment challenges the underlying merits of the case. In other words, a motion to dismiss is based on the legal sufficiency of the complaint, while a motion for summary judgment is based on the factual sufficiency of the case.