Academic journal article Albany Law Review

CPLR 3211(a)(7): Demurrer or Merits-Testing Device?

Academic journal article Albany Law Review

CPLR 3211(a)(7): Demurrer or Merits-Testing Device?

Article excerpt

New York Civil Practice Law and Rules ("CPLR") 3211 is one of the most important and frequently used procedural devices in civil actions. The statute allows a defendant (1) to seek dismissal of some or all of the causes of action asserted against it before it answers the action. (2) Subdivision (a) of the statute lists the specific grounds on which a defendant may seek dismissal. (3) CPLR 3211(a)(7) is home to arguably the most popular ground for pre-answer dismissal: failure to state a cause of action. (4) Query: can a defendant submit affidavits in support of its motion to dismiss under CPLR 3211(a)(7) and attack the merits of the plaintiffs pleadings? The answer to this query dictates the standard a court will employ in reviewing the motion. The extensive case law regarding the effect of a defendant's affidavits on a CPLR 3211(a)(7) motion is not consistent. This article will review both the law prior to CPLR 3211 and the legislative history of that statute, survey the case law construing CPLR 3211(a)(7), and provide a picture of the current state of the law on this subject.

I. PRIOR LAW & LEGISLATIVE HISTORY

Prior to the advent of the CPLR in September 1963, (5) civil procedure in New York was governed by the Civil Practice Act. Rule 106(4) of the Act provided a motion to dismiss for failure to state a cause of action. (6) Under that rule, a defendant could not submit affidavits in support of its motion--the defendant was allowed only to challenge the facial sufficiency of the plaintiffs pleading. (7) If, accepting the truth of the allegations and according the plaintiff the benefit of every reasonable inference, the court concluded that the plaintiff stated a cause of action cognizable at law, the defendant's motion was denied. (8) Moreover, courts rarely granted rule 106(4) motions without granting plaintiffs leave to replead, and plaintiffs had no obligation to support new allegations with evidence. (9) Rather, new allegations could be perfunctorily supplied by a plaintiff however baseless those allegations may have been. (10) Thus, the motion to dismiss for failure to state a cause of action under the Civil Practice Act generally resembled the traditional equity demurrer, (11) and while the motion often assisted defendants in obtaining more informative and technically correct pleadings, it rarely led to the disposition of cases.(12)

The Advisory Committee on Practice and Procedure, appointed to modernize civil practice, authored a series of reports between 1957 and 1962 that provide the effective legislative history of the CPLR. (13) In its First Report, the Committee concluded that the motion to dismiss for failure to state a cause of action under Civil Practice Act 106(4) was ineffective in terminating groundless suits. (14) The Committee was also concerned with the delay caused by that motion. The limited office of the motion as a tester of the facial sufficiency of a pleading, coupled with the liberality with which leave to replead was granted, promoted rounds of rule 106(4) motions and amended pleadings but did not reveal the facts underlying an action. (15) Accordingly, the Committee recommended omitting from the CPLR the motion to dismiss for failure to state a cause of action and requiring a challenge to the legal sufficiency of a pleading to be made after the joinder of issue by a summary judgment motion. (16) In the Committee's view, this proposal would have eliminated the delay that was promoted by the motion to dismiss under rule 106(4); responsive pleadings would be served after service of the initiatory papers, disclosure conducted, and summary judgment, where appropriate, granted based on the actual facts of the controversy developed through disclosure. (17)

That was all from the First Report. Approximately four years after that report was issued, the Committee offered its Fifth Report, (18) in which it modified its proposal omitting from the CPLR the motion to dismiss for failure to state a cause of action. …

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