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August 27, 2023 3 minutes to read ∙ 600 words

Defending Your Claim at the First Attack

By Norina Melita

It is common to be faced with a motion to dismiss almost immediately upon filing your complaint. This is the defendant’s first opportunity to attack your claim before even needing to answer. When faced with a motion to dismiss for failure to state a cause of action pursuant to state rules such as New York Civil Procedure Law and Rules (CPLR) § 3211 (a) (7), it is comforting, and strategically beneficial, to know that when reviewing such a motion, a court must give the pleadings liberal construction, accept all allegations as true, and afford the non-movant every possible favorable inference. Additionally, it helps to appeal to the state’s notice pleading, which allows for generalized allegations in the complaint. In fact, CPLR § 3013 only requires that the pleadings be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. Once again, the facial sufficiency of a complaint must be construed liberally, and, in the absence of prejudice to the opposing party, technical defects may be ignored. Actually, the standard for pleadings is so low that even if “pathetically drawn” or “reek[ing] of miserable draftsmanship,” a pleading will not fail even if the plaintiff fails to give the cause of action a name or state causes of action separately.

Additionally, it would serve you well to remind the court that, short of dismissal, remedies exist for clarifying the pleadings. Pleadings can be corrected or supplemented. Further, the desire for more details can be pursued in discovery.

Finally, the diligent litigator would be remiss if he or she did not move to amend the pleadings pursuant to CPLR § 3025, where appropriate. Under CPLR § 3025, amendments shall be clearly given unless prejudicial or surprising to the other side. Additionally, evidentiary inquiry into the substantial success of the claim is not appropriate unless the proposed amendment is patently devoid of merit. Moreover, a trial court is afforded great latitude in deciding whether to grant leave to amend the pleadings, and “absent a clear abuse of that discretion, [its decision] will not be lightly cast aside.

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    Norina Melita is currently the confidential law clerk to a Supreme Court Judge in Fonda, New York. Prior to that, she was the managing attorney and vice president of legal operations at a busy litigation firm in Albany, New York. Norina also teaches business law as an adjunct professor at the College of St. Rose. You may contact Norina at [email protected].

    Published in GPSolo eReport, Volume 13, Number 1, August 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.