Rule 3211. Motion to dismiss. (a) Motion to dismiss cause of action.\nA party may move for judgment dismissing one or more causes of action\nasserted against him on the ground that:\n 1. a defense is founded upon documentary evidence; or\n 2. the court has not jurisdiction of the subject matter of the cause\nof action; or\n 3. the party asserting the cause of action has not legal capacity to\nsue; or\n 4. there is another action pending between the same parties for the\nsame cause of action in a court of any state or the United States; the\ncourt need not dismiss upon this ground but may make such order as\njustice requires; or\n 5. the cause of action may not be maintained because of arbitration\nand award, collateral estoppel, discharge in bankruptcy, infancy or\nother disability of the moving party, payment, release, res judicata,\nstatute of limitations, or statute of frauds; or\n 6. with respect to a counterclaim, it may not properly be interposed\nin the action; or\n 7. the pleading fails to state a cause of action; or\n 8. the court has not jurisdiction of the person of the defendant; or\n 9. the court has not jurisdiction in an action where service was made\nunder section 314 or 315; or\n 10. the court should not proceed in the absence of a person who should\nbe a party.\n 11. the party is immune from liability pursuant to section seven\nhundred twenty-a of the not-for-profit corporation law. Presumptive\nevidence of the status of the corporation, association, organization or\ntrust under section 501 (c) (3) of the internal revenue code may consist\nof production of a letter from the United States internal revenue\nservice reciting such determination on a preliminary or final basis or\nproduction of an official publication of the internal revenue service\nlisting the corporation, association, organization or trust as an\norganization described in such section, and presumptive evidence of\nuncompensated status of the defendant may consist of an affidavit of the\nchief financial officer of the corporation, association, organization or\ntrust. On a motion by a defendant based upon this paragraph the court\nshall determine whether such defendant is entitled to the benefit of\nsection seven hundred twenty-a of the not-for-profit corporation law or\nsubdivision six of section 20.09 of the arts and cultural affairs law\nand, if it so finds, whether there is a reasonable probability that the\nspecific conduct of such defendant alleged constitutes gross negligence\nor was intended to cause the resulting harm. If the court finds that the\ndefendant is entitled to the benefits of that section and does not find\nreasonable probability of gross negligence or intentional harm, it shall\ndismiss the cause of action as to such defendant.\n (b) Motion to dismiss defense. A party may move for judgment\ndismissing one or more defenses, on the ground that a defense is not\nstated or has no merit.\n (c) Evidence permitted; immediate trial; motion treated as one for\nsummary judgment. Upon the hearing of a motion made under subdivision\n(a) or (b), either party may submit any evidence that could properly be\nconsidered on a motion for summary judgment. Whether or not issue has\nbeen joined, the court, after adequate notice to the parties, may treat\nthe motion as a motion for summary judgment. The court may, when\nappropriate for the expeditious disposition of the controversy, order\nimmediate trial of the issues raised on the motion.\n (d) Facts unavailable to opposing party. Should it appear from\naffidavits submitted in opposition to a motion made under subdivision\n(a) or (b) that facts essential to justify opposition may exist but\ncannot then be stated, the court may deny the motion, allowing the\nmoving party to assert the objection in his responsive pleading, if any,\nor may order a continuance to permit further affidavits to be obtained\nor disclosure to be had and may make such other order as may be just.\n (e) Numb
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