Clarify Dismissal Motion Rules

We believe that the proper approach was articulated by the First Department in Gamiel v. Curtis v. Riess-Curtis, 16 AD3d 140 (1st Dept 2005). The court there stated that "(where) a motion to dismiss for failure to state a cause of action particularizes each of the claims in the complaint, even though it is nominally addressed to the complaint as a whole, the court should treat that motion as applying to each individual cause of action alleged.... " Id. (emphasis added). Inasmuch as the defendant's supporting affirmation in Gamiel made particularized arguments as to the various claims in the complaint, the court denied the motion as to certain claims but granted it as to three others, allowing the case to proceed only on those claims that warranted further attention by the litigants and the lower court.

Unfortunately, not all courts have follow this approach. For example, in Great Northern Assoc. v. Continental Casualty Co., 192 AD2d 976 (3rd Dept 1993), review of the record shows that while the notice of motion sought dismissal of the entire complaint, the supporting affirmation made detailed arguments as to each cause of action. Nonetheless, the Third Department found "(no) error in Supreme Court's wholesale denial of (the) motion to dismiss upon the conclusion that two of the 13 claims stated viable causes of action." The court wrote that the result was dictated by "clear and well established" precedent in the Third Department. This case demonstrates the need to codify Gamiel.

The Second Department had held that if particularized arguments are made in an affirmation in support of a motion nominally addressed to the complaint as a whole, courts should address each cause of action. Martirano Construction Corp. v. Briar Construction Corp., 104 AD2d 1028, 1029 (2nd Dept 1984). Where particularized arguments are made only in the lower court brief, however, even if the affirmation references the particularized reasons given in the brief, the court has denied a motion to dismiss a complaint in its entirety upon finding one cause of action to be viable. Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assoc., 215 AD2d 450 (2nd Dept 1995). It did so in that case even though the movant had made detailed arguments as to each of 19 causes of action in its lower court brief.

The approach that a motion should be denied so long as one cause of action is viable appears to have its roots in older cases like Advance Music Corp. v. American Tobacco, 296 N.Y. 79, 93 (1946). That case held, under the Rules of Civil Practice, that a motion to dismiss for insufficiency seeking dismissal of an entire pleading must be denied under the rule that a "demurrer to a 'declaration' containing several counts should be overruled if any count is good." The decision did not recognize an exception even for cases in which particularized argument is made as to each cause of action. See Griefer v. Newman, 22 AD2d 696 (2nd Dept 1964) (reaching same result "early in the life of the CPLR," Prof. Siegel, McKinney's Commentaries 3211:26). Some lower courts relying on the broadly stated rule in Advance Music have denied motions to dismiss the complaint -- without any discussion of whether particularized argument was made as to each of several causes of action -- upon finding only one cause of action to be viable. E.g., Plata v. Parkway Village Equities Corp., 2013 N.Y. Misc. LEXIS 3478 (Sup. Ct. Queens Co., June 13, 2013).

The mere fact that a notice of motion nominally seeking dismissal of the entire complaint does not needlessly specify by number each and every cause of action should not be grounds for denying the entire motion upon a finding that a single cause of action is viable. Such an approach exalts form over substance and results in a waste of the parties' time and resources. The critical factor should be whether the movant has set forth arguments as to each cause of action. If particularized arguments are made, either in a supporting affirmation or an accompanying memorandum of law, the litigants should be entitled to a decision that eliminates claims that are not viable. A decision addressing each cause of action properly limits future discovery, narrows the issues at trial, and enhances the likelihood of settlement, thus serving the interests of judicial economy.

This measure, which would have no fiscal impact on the State, would take effect on the first of January next succeeding the date on which it shall have become law.

Legislative history

None. New proposal.