Compelling drama often accompanies the motion for summary judgment. Lawyers burn the midnight oil, assemble affidavits, and conduct extensive research before assembling the papers. The collection is then cite-checked and spell-checked before being deposited in a mailbox at 11:59 p.m. Finally, prayers are offered in the hopes that a summary judgment time frame, lurking in some remote corner of New York's menagerie of deadlines, has not been blown. Even if the movant's position is compelling on the merits, New York's civil procedure machinery can snatch a denial of the motion from the jaws of victory. See Siegel, New York Practice §279 (Connors ed., January 2015 Supplement).

Lately, however, we have witnessed confusion and resulting havoc when a motion to dismiss is made at the outset of an action. When a defendant makes a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, what must the plaintiff include in her response to defeat the motion? Are evidentiary affidavits required to support the allegations of the complaint, or is it sufficient to simply rely on the detailed contents of the pleading?

Unfortunately, there are no clear answers in this realm. A substantial body of case law, including a 2013 Court of Appeals decision, supports the proposition that a complaint stating all of the required elements of a cause of action will survive such a motion, regardless of the strength of defendant's affidavits. Nonetheless, many courts entertaining CPLR 3211(a)(7) pre-answer motions to dismiss will, without advance notice to the plaintiff, weigh defendant's evidentiary submissions and grant the motion if they determine that a cause of action does not exist, even when the pleading properly states a claim.

History of the Confusion

In Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976), the Court of Appeals addressed the power of a court to consider a defendant's affidavits on a CPLR 3211(a)(7) pre-answer motion to dismiss for failure to state a cause of action. The complaint in Rovello was sufficient on its face, but the defendant's evidentiary affidavits submitted in opposition to the motion made a very strong showing that plaintiff could not ultimately prove the necessary elements of her cause of action. The Court of Appeals ruled that a complaint should not be dismissed on a CPLR 3211(a)(7) pre-answer motion to dismiss if, after “the plaintiff is given the benefit of every possible favorable inference, a cause of action exists.” Id. at 634. While acknowledging that on the record before it the action might be dismissed under “the more embracive and exploratory motion for summary judgment,” the court held that “disposition by summary dismissal under CPLR 3211 [(a)(7) was] premature.” Id.