Motion for dismissal form3/30/2024 Unless the Court orders otherwise, once a notice of Motion to Dismiss is served, all discovery in the case is stayed until “determination of the motion.” The party seeking dismissal is immune from liability pursuant to the not-for-profit corporation laws.Ī party may move for judgment on one or more defenses on the ground that the defense is not stated or lacks merit. A person who should be a party to the action has not been joined to the action and the court should not proceed in the absence of that person. This ground for dismissal is waived if a party files a motion to dismiss and does not raise it, or does not raise it in the responsive pleading.įailure to Join Necessary Party. In a motion to dismiss based on improper service the opposing party must attach a copy of the proof of service, whether or not it was previously filed with the court. The court lacks jurisdiction because of flawed service outside the state or by publication, or because service outside the state was used in an action for which it is not authorized. This ground for dismissal is waived if a party files a motion to dismiss and does not raise it, or does not raise it in the responsive pleading. The court lacks personal jurisdiction over the defendant. The pleadings fail to state any cause of action. The cause of action is a counterclaim which may not properly be interposed in the underlying action. The cause of action is barred by prior arbitration award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release or res judicata. In this case the court may not dismiss the action and has the discretion to enter such orders as may be just under the circumstances.Īction is Barred. There is another action pending between the same parties for the same cause of action in a court in any state in the U.S. The party asserting the cause of action lacks legal capacity to sue.ĭuplicate Action. The court lacks jurisdiction over the subject matter or the cause of action. A defense exists and can be demonstrated using documentary evidence. The following grounds will support dismissal of a claim or claim(s):ĭocument Establishes Defense. Please see SmartRules for up-to-date guides. Note: New York Supreme Court Rules have been updated since this post was written. For a full treatment, including local rules and requirements, see the SmartRules New York Supreme Court Guides for Motion to Dismiss, Response to Motion to Dismiss, and Reply in Support of Motion to Dismiss. Use this New York Supreme Court Motion to Dismiss introduction for an overview of Motions to Dismiss in New York Supreme Courts.
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