For a full treatment, including local rules and requirements, see the SmartRules New York Supreme Court Guides for Motion to Dismiss, Response to Motion to Dismiss, and Reply in Support of Motion to Dismiss. Title 3, Civil Rules-Division 11, Law and Motion-Chapter 6, Particular Motions-Article 4, Discovery Motions adopted effective January 1, 2009.Use this New York Supreme Court Motion to Dismiss introduction for an overview of Motions to Dismiss in New York Supreme Courts. Rule 3.1342 amended effective Januadopted as rule 373 effective Janupreviously amended effective Janupreviously amended and renumbered effective January 1, 2007.
#Motion to dismiss trial#
The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice. (Subd (e) amended effective Janupreviously amended effective January 1, 1986.)
#Motion to dismiss code#
The court must be guided by the policies set forth in Code of Civil Procedure section 583.130. (10) Any other fact or circumstance relevant to a fair determination of the issue.
(9) Whether the interests of justice are best served by dismissal or trial of the case and (8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial (7) The nature of any extensions of time or other delay attributable to either party (6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case (5) The nature and complexity of the case (4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party (3) The extent to which the parties engaged in any settlement negotiations or discussions (2) The diligence in seeking to effect service of process (1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including: Within five days after service of the response, if any, the opposing party may serve and file a reply. (Subd (c) amended effective January 1, 2007.) Within 15 days after service of the written opposition, if any, the moving party may serve and file a response. (Subd (b) amended effective January 1, 2007.) The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits. Within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. (Subd (a) amended effective Janupreviously amended effective January 1, 1986, and January 1, 2007.) The filing of the notice of motion must not preclude the opposing party from further prosecution of the case to bring it to trial. The party may, with the memorandum, serve and file a declaration stating facts in support of the motion. Motion to dismiss for delay in prosecutionĪ party seeking dismissal of a case under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion.
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