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  • Writer's pictureDaniel Schneider

The Truth About Motions To Dismiss

As a client seeking representation, it is important to choose an advocate that will tell it to you straight.  Not make promises that cannot be kept and simply erode your confidence in them. 


One truth that every lawyer should tell a prospective client is that motions to dismiss, under New York State Law, as distinct from motions for summary judgment and/or a fact finding at a trial or hearing, are very hard to win.  Clients that have been sued and believe they are in the right have a misconception that there is a self-destruct button in any litigation that will allow them to get out of it without going through the entire process.


There normally is not, and if a lawyer tells you otherwise, you should run in the opposite direction.  While Farber Schneider Ferrari LLP has been very successful on motions to dismiss, in light of the long odds, the decision as to whether to bring one is left to the client and only after a full discussion of the implications and consequences.


A motion to dismiss is a device used by a defendant typically very early in the case, usually before any discovery has been completed.  It is a device used to dispose of, early, cases that have no merit.  Since no discovery has been done, the motion is essentially assessing the complaint alone and for a defendant to win in such a scenario, it must show conclusively that the complaint, under any circumstances, has no merit.


If forced to give a percentage of success of dismissals on a motion to dismiss, I typically put it into the single digits. This is because for a motion to dismiss to fail, a plaintiff must simply “state a cause of action.” This bit of legalese means that it is not required to prove its case at this stage, but “determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); see also Amaro v. Gani Realty Corp., 60 A.D.3d 491, 492 (1st Dept. 2009).


The “any cognizable legal theory” standard necessitates most vexing part of this analysis: with few exceptions, on a motion to dismiss, the allegations in a complaint are assumed to be true and “are accorded every favorable inference.” See Maas v. Cornell University, 94 N.Y.2d 87, 91 (1999).


This concept is difficult for even lawyers to wrap their heads around.  If the allegations are so false, why would the Court ever assume truth? The answer is because the Court must find that the case is meritless on its face, even if all the allegations were true, in order to dismiss. Put another way, the case should only be dismissed if the plaintiff was accurate about everything it asserted AND, even then, no cause of action has been stated.


While few exceptions to this rule exist—e.g. if there is conclusive evidence that an allegation in a complaint is not true, then it is not entitled to the assumption of truth, and to the benefit of favorable inferences, see Biondi v. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 81 (1st Dept. 1999)—those exceptions are in furtherance of the one underlying principle: the case is only dismissed if, at the outset, the Court is 100% sure that the complaint has no merit.


Because a motion to dismiss presents the opportunity to end the case in favor of a defendant at the inception, without discovery or trial, the standard for winning one is herculean. If a motion to dismiss is lost by a defendant, it does not mean it loses the whole case.  It only means that it is going to be required to litigate the case including going through discovery (which is expensive).  It will go back to the point it would have been at had the motion to dismiss never been brought—where it must answer the complaint.  It will have other opportunities to assert that the complaint has no merit, but after discovery has been engaged in. 


Therefore, bringing such a motion is a calculated risk on the part of any defendant and should be carefully weighed.  While a litigant may avoid the cost of discovery on a successful motion to dismiss, a failed one will only add to a defendant’s litigation costs with zero benefit.


At Farber Schneider Ferrari LLP, we will honestly assess the chances of success on a motion to dismiss and advise a prospective client about the wisdom of moving at the outset or simply answering and entering discovery.  Here, you will not meet with lawyers who bring motions and add billable hours for no legitimate purpose, but with ones who will give you reasoned advice as to the prudence of every course of action and will make such decisions in close consultation with the client.  Please feel free to reach out to set up a consultation.

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