On October 4, 2022, Justice Platkin of the Albany County Commercial Division issued a decision in Pioneer Bank v. Teal, Becker & Chiaramonte, CPAs, P.C., 2022 NY Slip Op. 22316, declining to convert a post-answer motion to dismiss into a motion for summary judgment, explaining:
CPLR 3211 (a) (7) allows a party to move for dismissal on the ground that the pleading fails to state a cause of action. Such a motion may be made at any time.
On a motion to dismiss made pursuant to CPLR 3211 (a), including a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), either party may submit any evidence that could properly be considered on a motion for summary judgment, including documentary evidence and affidavits. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.
Here, defendants moved under CPLR 3211 (a) (7) and 3211 (c), thus inviting conversion of their motion into one for summary judgment. However, the Court has not converted the motion, and it will not do so. As defendants were advised at the January 2022 conference, if they wanted their motion treated as one for summary judgment, they needed to move for summary judgment. Accordingly, the Court has before it an unconverted, post-answer motion for dismissal under CPLR 3211 (a) (7).
As Pioneer observes, the Appellate Division, Third Department recently summarized the principles governing determination of such a motion. As well-articulated by Presiding Justice Garry, the grounds for dismissal under CPLR 3211 (a) (7) are strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits.
In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant — without regard to how compelling claims made in such submissions may appear. Unless the motion to dismiss is converted by the court to a motion for summary judgment, a motion to dismiss is not in a posture to be resolved as a matter of law.
In so ruling, the Third Department relied on the Court of Appeals’ decision in Miglino v Bally Total Fitness of Greater NY, Inc., which declined to dismiss a negligence action under CPLR 3211 (a) (7) based on the defendant’s affidavit. The Court of Appeals explained that the matter came to it on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits, and plaintiff has at least pleaded a viable cause of action. The Court of Appeals further emphasized that CPLR 3211 (a) (7) limits a court to an examination of the pleadings to determine whether they state a cause of action, obliges the court to accept facts alleged in plaintiff’s complaint as true and interpret them in the light most favorable to plaintiff, and protects the plaintiff from being penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face.
Contrary to defendants’ argument in reply, nothing in the Third Department’s decision in Zeppieri v Vinson alters the mode of analysis for CPLR 3211 (a) (7) motions articulated in Carr. The Third Department’s decision in Zeppieri rejected the argument that Carr limited what may be considered as documentary evidence, but that discussion pertained to the branch of the dismissal motion brought under CPLR 3211 (a) (1). Defendants’ motion is not made under CPLR 3211 (a) (1), and their time in which to raise a defense founded upon documentary evidence under that provision expired with service of their answer.
(Internal quotations and citations omitted).