Motion to Dismiss in New York

What Is a Motion to Dismiss?

Background

“A party may move for judgment dismissing one or more causes of action” on the ground that “a defense is founded upon documentary evidence.” (Civ. Prac. Law & Rules, § 3211(a)(1).)

How to Structure the Motion

In order to prevail on a motion to dismiss, the documentary evidence submitted “must be such that it resolves all the factual issues as a matter of law and conclusively and definitely disposes of the plaintiff’s claim.” (Fernandez v. Cigna Property and Casualty Insurance Co., 188 A.D.2d 700, 702.)

Documentary evidence is limited to “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.” (Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658, 659 [2012].) The court has stated that letters, emails, affidavits, and depositions are not considered “documentary” under Section 3211(a)(1) of Civil Practice Law and Rules. (Fontanetta v. Doe, 73 A.D.3d 78, 85, 898 N.Y.S.2d 569, 575 [2010].)

Response

If the court finds that there is a factual dispute requiring discovery, meaning the documentary evidence submitted to support a motion to dismiss does not utterly refute the plaintiff’s allegations or conclusively establish a defense as a matter of law, the motion to dismiss is premature and must be denied so that the parties can conduct discovery. (Attias v. Costiera, 120 A.D.3d 1281, 1282, 993 N.Y.S.2d 59, 61 [2014]; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 865 [2002].).

In support of the opposition to a motion to dismiss, the non-moving party can submit affidavits and other documentary evidence to demonstrate the existence of a factual dispute. (American Indus. Contracting Co. v. Travelers Indem. Co., 42 N.Y.2d 1041, 1043, 399 N.Y.S.2d 206 [1977].)

The Court’s Decision

“Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” (Civ. Prac. Law & Rules, § 3013.)

A motion to dismiss “should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted.” (Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 [1st Dept. 1999].) Dismissal is only appropriate under these circumstances where the documentary evidence flatly rejects a plaintiff’s well-pleaded and cognizable claim, or “conclusively establishes a defense to the asserted claims as a matter of law.” (Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 136 [1st Dept. 2014].)

Documents for Motion to Dismiss in New York

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Regina Vazquez v. John Alejandro Ortiz, John Doe (name is unknown to plaintiff and said fictitious name is intended to designate the operator of a vehicle owned by John Alejandro Ortiz on 3/5/22 at approximately 6:44 p.m. at or about W. Mount Eden Avenue & Jerome Avenue, Bronx, NY), Rasier-Ny, Llc, Uber Technologies, Inc., Uber Usa, Llc document preview

EXHIBIT(S) - P - Decision in Ashar v. Uber Technologies, Inc.

8 pages

FILED: BRONX COUNTY CLERK 05/10/2024 12:15 PM INDEX NO. 810826/2022E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/10/2024 EXHIBIT P FILED: BRONX KINGS COUNTY CLERK 05/10/2024 01/16/2024 12:15 02/05/2024 04:36 PM 11:43 …

Case Name Regina Vazquez v. John Alejandro Ortiz, John Doe (name is unknown to plain…