This form is a sample motion to dismiss filed by the defendant seeking to have plaintiff's cause of action dismissed for failure to state a claim upon which relief may be granted.
New York Motion to Dismiss - Personal Injury
State:
Multi-State
Control #:
US-PI-0313
Format:
Word;
Rich Text
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How to fill out Motion To Dismiss - Personal Injury?
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FAQ
CPLR 3211(a)(7) provides: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . . the pleading fails to state a cause of action . .. ." . . . either party may submit any evidence that could properly be considered on a motion for summary judgment ....
"On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must assume "all well-pleaded, nonconclusory factual allegations in the complaint to be true" and "draw all reasonable inferences in the plaintiff's favor."On the other hand, "threadbare recitals of the elements of a cause of ...
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.
(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.
The motion to dismiss is a defendant's request that the case be thrown out, usually because of a deficiency in the complaint or the way the complaint was served on the defendant. Failure to state a claim is the most common grounds for dismissal. A judge can dismiss a claim with or without prejudice.
Section 3012-A - Certificate of merit in medical, dental and podiatric malpractice actions (a) In any action for medical, dental or podiatric malpractice, the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case ...
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.