Motions to Dismiss and Moving for Summary Judgment | Best Practices

In New York, a motion to dismiss and a motion for summary judgment are two distinct legal procedures used to challenge the validity of a lawsuit, but they serve different purposes.

You will learn about:

Motion to Dismiss

A **motion to dismiss** is typically filed by a defendant at the outset of a case. The purpose of this motion is to argue that even if all the allegations in the plaintiff’s complaint are true, there is no legal basis for the lawsuit to proceed. Common grounds for a motion to dismiss in New York include:

– **Lack of subject matter jurisdiction**: The court does not have the authority to hear the case.

– **Lack of personal jurisdiction**: The court does not have power over the defendant.

– **Failure to state a cause of action**: The complaint does not allege facts sufficient to support a legal claim.

– **Improper venue**: The case was filed in the wrong location.

– **Statute of limitations**: The time limit to file the claim has expired.

The motion is typically supported by legal arguments and may include affidavits or other evidence, although the court generally looks only at the complaint itself for a motion to dismiss.

Motion for Summary Judgment

A **motion for summary judgment**, on the other hand, is filed after the discovery phase of litigation, usually when a party believes that there are no genuine issues of material fact that require a trial. Instead, the moving party argues that based on the evidence presented (such as depositions, documents, and affidavits), they are entitled to judgment as a matter of law. 

Key points include:

– **No genuine issues of material fact**: The evidence shows that there’s no disagreement on the key facts of the case.

– **Entitlement to judgment**: The moving party must demonstrate that they are entitled to win based on the law, given those undisputed facts.

In New York, the party moving for summary judgment has the burden of proving that there are no material issues of fact. If they succeed, the court may grant summary judgment in their favor without the need for a trial.

Summary

– **Motion to Dismiss**: Challenges the legal sufficiency of a complaint. Filed early in the case.

– **Motion for Summary Judgment**: Challenges the factual basis of the case after discovery. Aims to resolve the case without going to trial.

Each motion plays a crucial role in the litigation process, allowing parties to seek dismissal or resolution based on legal or factual grounds.

Lecture by:

Burton N. Lipshie

Professor of Practice and Director of Advocacy Skills Training, Cardozo Law

Burton N. Lipshie was an Assistant District Attorney in New York County and a member of the Appeals Bureau. Lipshie also served for six years as Principal Law Clerk to a New York State Supreme Court and Appellate Term Justice.

Widely regarded as an expert on New York procedure, Lipshie has served as both an educator to, and an advocate on behalf of, the New York State Court System. Each year he is invited by the New York State Office of Court Administration, and its Judicial Institute, to teach New York procedure at its annual seminars for Justices and Judges throughout the state, as well as the seminars for Law Clerks and Court Attorneys. As counsel to the Association of Judges of the Supreme Court of the State of New York, Lipshie was called upon to defend the constitutionality of the City's process for selection of judges. He also serves as regular outside counsel to the Association of Law Secretaries to the Justices of the Supreme and Surrogates' Court in New York City.

In 1999, after nine successive graduating classes awarded him "The Outstanding Adjunct Professor" award, the school renamed the award the "Burton N. Lipshie Outstanding Adjunct Professor Award." He has been given the award again by the Classes of 2002, 2003 and 2004. Lipshie is co-author of New York Civil Practice Before Trial published by James Publishing Co., and has written articles and book chapters on procedural issues.

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