Brill and CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7), as most of you know, permits a motion to dismiss because the complaint fails to state a cause of action.  Unlike CPLR R. 3212, there is no 120-day timeline.  The standard of review is different as well.[1]  You can make the motion at any time.[2] But it needs to be converted.  See, Rich v. Lefkovits, 56 N.Y.2d 276 (Ct. App. 1982).

But can you get around CPLR R. 3212's 120-day timeline[3] by calling your summary judgment motion as motion to dismiss.  The short answer is no;[4] however, an explanation is required.

CPLR R. 3211(a)(7) should be used to weed out those complaints that don’t state a cause of action.  That’s it.  A complaint either states a cause of action or doesn’t.  Affidavits aren’t appropriate.  But, if an affidavit is attached, the motion turns into a different animal—it shouldn’t, but it generally does.  No longer will the court limit its inquiry into whether the complaint states a cause of action; now the inquiry is, does the plaintiff have a cause of action.  Whether a plaintiff states a cause of action or has a cause of action is a different question than whether the plaintiff will ultimately be successful, which is “not part of the calculus in determining a motion to dismiss.”[5]

Whether a plaintiff will ultimately be successful is fodder for a motion for summary judgment.  It follows then, that any motion made under 3211(a)(7) that isn’t directed at the pleadings is a summary judgment motion is disguise.[6]  That disguised motion is subject CPLR 3212’s 120-day timeline.  But to get back to my earlier point, any motion to dismiss under (a)(7) that utilizes and affidavit, is not proper.  I don’t care what anyone says.  If the motion doesn’t fit within 3211, then it’s a 3212 motion, subject to the time limit.

Now the question is why should it be subject to the time limit.  The answer is Brill v City of New York, 2 NY3d 648 (Ct. App. 2004).[7]  The Court of Appeals could have modified or completely done away with Brill in Crawford v Liz Claiborne, Inc., 11 NY3d 810 (Ct. App. 2008), but it didn’t.  It remains good law.

There is no reason to permit disguised summary judgment motions, no matter how meritorious, under CPLR R. 3211(a)(7).  Otherwise, Brill is meaningless.  Motions made under (a)(7) that are converted to Summary Judgment motions or those 3211(a)(7) motions were both parties charted a summary judgment course shouldn’t be permitted either.

If anyone is interested, JT’s post prompted me to write this post.


[1] “In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference.” Garner v China Natural Gas, Inc.2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

[2] For some interesting reading check out Butler v Catinella, 58 AD3d 145(App. Div., 2nd 2008), where the Appellate Division, Second Department corrected itself, and allowed the defense to be interposed in an answer.

[3] This is a hard timeline, with very little wiggle room.  Rivera v City of New York2010 NY Slip Op 03773 (App. Div., 1st, 2010)

[4] Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010); West Broadway Funding Assoc. v Friedman2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

[5] Crepin v Fogarty2009 NY Slip Op 01272 (App. Div., 2nd, Feb. 19, 2009).  See also; Etzion v Etzion2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

[6] In most, but not all cases.  It is possible that the 3211(a)(7) isn’t a disguised summary judgment motion; that it is just a garbage motion.


We conclude that "good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause."

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