Gail Blasie, Attorney At Law

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Answering The Complaint or Filing A New York Motion To Dismiss

ANSWERING THE COMPLAINT OR FILING A NEW YORK MOTION TO DISMISS

Upon receipt of the complaint, first determine if the complaint should be answered or whether a pre-answer motion to dismiss should be filed pursuant to CPLR § 3211(a).

The main bases for dismissal are lack of personal jurisdiction, improper service, failure to state a cause of action, and the statute of limitations.

You can file a pre-answer motion to dismiss within the same amount of time that you would normally have to answer the complaint based on any of the defenses outlined in CPLR § 3211(a).  The benefit of filing the pre-answer motion to dismiss is that all discovery is stayed pending resolution of the motion to dismiss.

Alternatively, you may answer the complaint and include the affirmative defenses as well as counterclaims.  If you include counterclaims, be sure to include only counterclaims that relate directly to Plaintiff’s causes of action.  If you include counterclaims that are unrelated or peripheral to the causes of action in the complaint, then you will be deemed to have sought the jurisdiction of the court and will have conceded to personal jurisdiction.  See Textile Technology Exchange, Inc. v. Davis, 81 N.Y.2d 56, 58-59, 595 N.Y.S.2d 729, 730 (1993.)

If you ask for summary judgment on your counterclaims, you will be deemed to have waived any personal jurisdiction defense, as you will have invoked the power of the Court.  See Flaks, Zaslow & Co., Inc. v. Bank Computer Network Corporation, 66 A.D.2d 363, 413 N.Y.S.2d 1 (1st Dept. 1979).

If the affirmative defense of lack of personal jurisdiction is as the result of improper service, then the motion to dismiss must be made within sixty (60) days of service of the answer. Failure to do so will result in the waiver of the defense.  CPLR § 3211(e).

The affirmative defenses based upon documentary evidence, that the plaintiff has no legal capacity to sue, that there is another action pending between the parties for the same cause of action, or that the cause of action may not be maintained because of arbitration, collateral estoppel, discharge in bankruptcy, infancy, disability, payment, release, res judicata, statute of limitations, or statute of frauds, must be set forth in a pre-answer motion to dismiss or in an answer or the affirmative defenses will be deemed to have been waived.  CPLR § 3211(e).

A motion to dismiss based upon no subject matter jurisdiction, failure to state a cause of action, or absence of a person who should be a party, may be made at any subsequent time or in a later pleading, if one is permitted.  CPLR § 3211(e).

Lastly, CPLR § 3211(e) allows only 3211(a) motion to dismiss.

Gail M. Blasie’s motion and appellate practice is devoted to providing legal research, writing and appellate services for other attorneys.


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