Can a motion to dismiss be brought at any point pre-trial or is it limited to before answer/service of the responsive pleading?
I want to motion to dismiss for lack of capacity a claim brought against me by a party who is not the legal owner of a property.
According to CPLR 3211(a)(3), 'a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the party asserting the cause of action has not legal capacity to sue'.
According to CPLR 3211(e), 'Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs 1, 3, 4, 5 and 6 of subdivision (a) is waived unless raised either by such motion or in the responsive pleading'.
Paragraph 3 of subdivision (a) is germane.
I did set forth as an affirmative defense in my answer that the plaintiff is not the legal owner of the property but that was many months ago. No note of issue has yet been filed. Can I still motion to dismiss at this juncture?
1 Answer from Attorneys
What you are presenting is a question of fact and not something that appears "within the four corners of the complaint." Therefore, you must go outside the pleadings and provide factual support for your defense. As such, you will need to file a motion for summary judgment.
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