New York Law Review

Tag: CPLR 3211

  • Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976): Motion to Dismiss After Answer Requires Notice of Summary Judgment Conversion

    40 N.Y.2d 633 (1976)

    When a motion to dismiss for lack of personal jurisdiction is made after the answer has been filed, the motion must be treated as one for summary judgment, and the court must give the parties notice that it will be so treated.

    Summary

    This case addresses the proper procedure for a defendant who wishes to challenge personal jurisdiction after filing an answer. The defendant, a physician, argued improper service in a malpractice and product liability suit. Although the defendant raised the jurisdictional defense in his answer, he later moved to dismiss based on CPLR 3211(a)(8). The Court of Appeals held that such a motion, made after the answer, must be treated as a motion for summary judgment under CPLR 3212. Further, the court must provide notice to the parties that the motion will be treated as a summary judgment motion. Because the plaintiff did not receive such notice, the case was remitted for reconsideration.

    Facts

    The plaintiff sued the defendant physician for malpractice and the drug manufacturer for product liability. Service on the physician was attempted via CPLR 308(4), by affixing the summons and complaint to his office door and mailing a copy to his “last known residence.” The defendant argued that the mailed copy was sent to the same address as the “nailed” copy, which was not his residence, and that due diligence was not demonstrated before resorting to substituted service.

    Procedural History

    The defendant stipulated to extend the time to answer, then included a jurisdictional defense in his answer. Nearly two years later, the defendant moved to dismiss under CPLR 3211(a). The plaintiff argued the defendant waived the jurisdictional defense. The lower courts ruled in favor of the defendant. The plaintiff appealed to the Court of Appeals.

    Issue(s)

    Whether a motion to dismiss for lack of personal jurisdiction, made after the answer has been filed, should be treated as a motion for summary judgment; and, if so, whether the court must provide notice to the parties that it will be so treated.

    Holding

    Yes, because CPLR 3211(c) requires that when a motion to dismiss is made after the answer, the court must give adequate notice to the parties that the motion will be treated as one for summary judgment.

    Court’s Reasoning

    The Court reasoned that while CPLR 3211(e) does not explicitly prohibit a motion to dismiss after an answer, CPLR 3212(c) implies that such a motion should be treated as a motion for summary judgment. The court emphasized that under CPLR 3211, a plaintiff is not obligated to submit affidavits on penalty of dismissal, as is the case under CPLR 3212. Quoting from the decision, “CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212”.

    The court noted that the Judicial Conference recommended the 1973 amendment to CPLR 3211(c) requiring notice to ensure an appropriate record and submission of facts by the parties. The court held that requiring a motion challenging personal jurisdiction after an answer to be made under CPLR 3212 (or with notice of conversion from 3211 to 3212) reduces potential gamesmanship and allows efficient resolution through immediate trial of factual issues. While a more definite statement of defense could have been requested, CPLR 3013 intended to move pleadings away from rigid formalism. The court found the lower court erred by not giving the plaintiff notice that it would treat the motion to dismiss as one for summary judgment.

  • Addesso v. Shemtob, 70 N.Y.2d 900 (1987): Waiving Jurisdictional Defense Through Pre-Answer Motion

    Addesso v. Shemtob, 70 N.Y.2d 900 (1987)

    A defendant waives the defense of lack of personal jurisdiction by making a pre-answer motion under CPLR 3211(a) without including the jurisdictional objection, even if the motion is later deemed abandoned due to failure to submit an order.

    Summary

    This case addresses the waiver of a personal jurisdiction defense in New York civil procedure. The defendant, Shemtob, made a pre-answer motion to dismiss but failed to include a challenge to personal jurisdiction. Although he argued the motion was abandoned, the Court of Appeals held that by making any CPLR 3211 motion without raising his jurisdictional defense, the defendant waived that defense, regardless of whether the initial motion was ultimately perfected. The court emphasized preventing defendants from strategically delaying jurisdictional challenges.

    Facts

    The plaintiffs, Addesso, sued the defendant, Shemtob. Shemtob made a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action. However, he did not include a challenge to personal jurisdiction in this motion. Under the rules of the Supreme Court of Kings County, failure to submit an order after a motion constitutes abandonment of the motion. Shemtob asserted that his failure to submit the order meant the motion was a nullity.

    Procedural History

    The plaintiffs moved to strike the affirmative defense of lack of personal jurisdiction. Special Term’s decision regarding the waiver of personal jurisdiction was not explicitly stated. The Appellate Division ruled on the issue. The New York Court of Appeals reversed the Appellate Division’s order, granted the plaintiffs’ motion to strike the affirmative defense, and answered the certified question in the negative.

    Issue(s)

    Whether a defendant waives the affirmative defense of lack of personal jurisdiction by making a motion under CPLR 3211(a) without including the jurisdictional objection, even if the defendant claims the motion was abandoned due to failure to submit an order as per local court rules.

    Holding

    Yes, because CPLR 3211(e) is designed to prevent a defendant from strategically delaying a jurisdictional challenge. By making any motion under 3211 without raising the jurisdictional defense, the defendant waives that defense.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 3211(e) aims to prevent defendants from wasting the court’s and the plaintiff’s time by bringing piecemeal motions. The statute requires defendants to consolidate all defenses under CPLR 3211, including jurisdictional ones, into a single motion. The court stated that “[t]he purpose of the waiver provision of CPLR 3211 (subd [e]) is to prevent the defendant from wasting both the “court’s or the plaintiff’s time on any 3211 motion on any ground at all unless on that motion he joins his jurisdictional ground”.” The court rejected the defendant’s argument that the motion was a nullity due to his failure to submit the order, stating that the defendant’s self-serving act of failing to enter the order cannot contravene the legislative purpose of CPLR 3211(e). The court emphasized that the issue, although not raised at Special Term, was properly before the Court of Appeals because it was presented on the record, raised at the Appellate Division, and was conclusive.

  • Nicastro v. Marine Midland Bank, 44 N.Y.2d 640 (1978): Pleading Standard When Considering Affidavits on a Motion to Dismiss

    Nicastro v. Marine Midland Bank, 44 N.Y.2d 640 (1978)

    When considering a motion to dismiss for failure to state a cause of action, a court should not treat it as a motion for summary judgment without providing adequate notice to the parties, and affidavits submitted should primarily serve to clarify the pleadings unless they conclusively prove the plaintiff has no cause of action.

    Summary

    This case concerns the standard for dismissing a complaint under CPLR 3211(a)(7) when affidavits are submitted. The plaintiff sought specific performance of a real estate agreement. The defendant moved to dismiss for failure to state a cause of action, submitting affidavits suggesting the plaintiff never tendered the required down payment. The Court of Appeals held that a motion to dismiss should not be granted if the complaint, given all favorable inferences to the plaintiff, states a cause of action. The court emphasized that unless the motion is converted to one for summary judgment with proper notice, affidavits should primarily be used to clarify pleadings, not to conclusively determine the merits of the case. The Appellate Division’s order reversing the denial of the motion to dismiss was reversed, and the Special Term’s order was reinstated.

    Facts

    Defendant Nicastro agreed to sell her late husband’s insurance business and related real estate to plaintiff. The agreement involved three transfers: the insurance agency, the building housing the agency, and stock in Orofino Realty Co., Inc. The first two transfers were completed. The current dispute concerns the transfer of the Realty Co. stock. The plaintiff alleged the defendant’s nonperformance and his own readiness to perform. The defendants moved to dismiss, arguing that the plaintiff never tendered the $5,700 down payment required for the Realty Co. stock transfer.

    Procedural History

    The Special Term denied the defendant’s motion to dismiss. The Appellate Division reversed, granting the motion to dismiss the complaint. The plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    Whether a court may grant a motion to dismiss under CPLR 3211(a)(7) without treating it as a motion for summary judgment when the complaint is sufficient on its face, but affidavits suggest the plaintiff may not have a cause of action.

    Holding

    No, because CPLR 3211(c) requires that if the court decides to treat a CPLR 3211(a) motion as one for summary judgment, it must first provide adequate notice to the parties, giving them an opportunity to make an appropriate record. Affidavits received on an unconverted motion to dismiss are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.

    Court’s Reasoning

    The Court of Appeals emphasized that a complaint should not be dismissed if it states a cause of action when the plaintiff is given the benefit of every possible favorable inference. The court noted that while affidavits may be considered in a motion to dismiss, their role is limited unless the motion is converted to one for summary judgment. CPLR 3211(c) explicitly requires that parties receive adequate notice if the court intends to treat the motion as one for summary judgment, allowing them to present all relevant evidence. Without such notice, affidavits should primarily be used to clarify the pleadings, not to determine whether there is sufficient evidentiary support for the claim.

    The court stated, “[I]n instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems that after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action.”

    The Court acknowledged that the defendants’ affidavits presented a strong defense. However, because the trial court did not convert the motion to one for summary judgment and provide proper notice, the plaintiff was not required to present all available evidence. The court suggested the possibility that the defendants might have waived the down payment requirement or acquiesced in the delay. Thus, the Court determined that the Special Term properly denied the motion to dismiss.

  • Foley v. D’Agostino, 21 A.D.2d 60 (1964): Granting Leave to Replead After Failure to State a Cause of Action

    Foley v. D’Agostino, 21 A.D.2d 60 (1964)

    A party may be granted leave to replead even after failing to request it in initial opposition papers, provided they can demonstrate evidentiary facts supporting a valid claim in a proposed amended complaint.

    Summary

    This case concerns the right to replead after a complaint has been dismissed for failing to state a cause of action. The Court of Appeals held that even though the appellants did not initially request leave to replead, they could still apply to the Special Term for such leave. This opportunity is contingent upon the appellants submitting a proposed amended complaint, accompanied by evidentiary facts, demonstrating a valid claim that would justify the granting of leave to replead. This decision balances the need for judicial efficiency with the principle that parties should have a fair opportunity to present their case if they possess sufficient evidence to support a valid claim.

    Facts

    The specific facts underlying the original complaint are not detailed in this brief memorandum opinion. However, the core issue stemmed from the dismissal of the appellants’ complaint for failure to state a cause of action and the cancellation of a related notice of pendency.

    Procedural History

    The Appellate Division affirmed the granting of motions to dismiss the complaint and cancel the notice of pendency. The appellants did not state a desire to plead again in their opposing papers. The Court of Appeals modified the Appellate Division’s order, affirming the dismissal but without prejudice to the appellants’ right to apply for leave to serve an amended complaint at Special Term.

    Issue(s)

    Whether a party, whose complaint has been dismissed for failing to state a cause of action and who did not initially request leave to replead, can subsequently apply for such leave by demonstrating evidentiary facts supporting a valid claim in a proposed amended complaint?

    Holding

    Yes, because even though the appellants did not initially request leave to replead, they should be afforded an opportunity to demonstrate their right to relief if there are evidentiary facts which would warrant recovery under the applicable principles of law.

    Court’s Reasoning

    The Court of Appeals acknowledged that the original complaint failed to state a cause of action. However, the court emphasized that if the appellants possessed evidentiary facts that could warrant recovery under relevant legal principles, they should have the opportunity to present those facts. The court allowed the appellants to apply to the Special Term for leave to serve an amended complaint. This application must include a copy of the proposed amended complaint and a disclosure of the evidentiary facts supporting the claims. The court explicitly referenced CPLR 3211, subd [e], indicating reliance on statutory authority governing motions to dismiss and the potential for amendment. The decision reflects a balance between adherence to procedural rules and ensuring fairness in litigation. Even though the appellants did not initially seek leave to replead, the court recognized the possibility that they could possess a valid claim supported by evidence that was not adequately presented in the original complaint. The court stated, “Nonetheless, if there are evidentiary facts which would warrant recovery under the applicable principles of law, appellants should be afforded an opportunity to demonstrate their right to relief.” This demonstrates the court’s intent to allow a party to pursue a potentially valid claim if they can provide sufficient evidentiary support, even if they initially failed to request leave to replead. The court’s decision underscores the importance of presenting concrete evidentiary facts to support legal claims and highlights the availability of procedural mechanisms to correct pleading deficiencies, provided that a party can demonstrate a reasonable basis for doing so.