Motion To Dismiss And Supporting Forms (3 Pages)

A Motion to Dismiss a Complaint is a pre-pleading motion used by the defendant against the plaintiff  before  defendant’s service of an Answer whether in Federal Court under Rule 12 (B) of the Federal Rules of Civil Procedure or in State Court, under  New York’s Civil Practice Law and Rules  Sec. 3211.
The grounds for such Motion can be asserted to dismiss the Complaint are set forth in the Statute and often involve jurisdictional issues, service of process issues or legal insufficiency of the Complaint.  Affidavits can be annexed as Exhibits in support of the grounds set forth.  Documentary  evidence can be used in support  of such a Motion as, for example, a Release signed by the plaintiff in the past releasing  defendant from the claims now asserted in the Complaint. The Motion papers consist of Notice of Motion and supporting papers including Affidavits with exhibits, if any. A copy of the Complaint must be annexed. 
Attorney’s affidavit is essentially a summary of the dismissal grounds since the attorney does not usually have personal knowledge of the events or transactions between the parties giving rise to the dispute. The Defendant’s detailed affidavit is based on personal knowledge.
If the Motion is denied, defendant can then serve an Answer to the Complaint. Even Denial of the Motion may have some strategic use as plaintiff may have to disclose elements of its claim not appearing in the Complaint.
Author:
Myron J. Meadow spent the major portion of his legal career as a Senior Litigator for the Law firm of Weil, Gotshal  & Manges in New York City. He handled civil and commercial litigation as well as appellate practice.  Although he is a graduate of New York University School of Law, he has on multiple occasions served as a Moot Court Judge at Columbia University School of Law, his wife, Claire’s alma mater. He is listed in Who’s Who in American Law 2nd edition.
He served as a part time instructor in the Paralegal program at Baruch College, City of New York teaching general litigation and procedure.  He has served as a volunteer Arbitrator for the American Arbitration Association and the Arbitration Council of the Textile Apparel Industry.  As a member of the Bar Association of the State of New York, Landlord Tenant Section of the Real Property Committee, he wrote several articles. He served on the Board of Directors of the Bronx County Bar Association and chaired its Legislation Committee for ten years. He was among the group of pro bono legal advisors to the New York Museum of Jewish Heritage: A Living Memorial to the Holocaust.
 As an undergraduate student at the College of the City of New York, he was President of the Government and Law Society. He also was the Captain of the City College golf team earning a Varsity Letter for Golf. He is a member of the U.S. Committee Sports for Israel where he was particularly involved with the Masters’ Golf Team and also with sponsorship of young athletes to the World Maccabiah Games in Israel.