When your motion to dismiss becomes summary judgment.

CPLR 3211(c) lets a New York court treat your motion to dismiss as a motion for summary judgment after adequate notice to the parties. Conversion changes the question from whether the complaint states a claim to whether the evidence proves one. The order that follows decides the merits. Your own affidavits and exhibits are usually what invite it.

What does CPLR 3211(c) actually say?

CPLR 3211(c) provides that upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment, and that, whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.

The subdivision adds one more power. The court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of the issues raised on the motion.

Read it as four separate rules, because they operate separately.

• Evidence is permitted. Either side may file affidavits, documents, and other summary judgment proof on a motion to dismiss.
• Conversion is discretionary. The court may treat the motion as one for summary judgment. It is not required to.
• Notice is mandatory. Conversion requires adequate notice to the parties, subject to the narrow exceptions below.
• Joinder of issue is irrelevant. Conversion is available before you have answered.

Law: CPLR 3211(c).

That last point matters because the ordinary route to summary judgment is closed before an answer. CPLR 3212(a) permits a summary judgment motion only after issue has been joined. CPLR 3211(c) is an exception to that sequence. It is not the only pre-answer route to a merits ruling: CPLR 3213 allows a plaintiff suing on an instrument for the payment of money only, or on a judgment, to move for summary judgment in lieu of a complaint. Conversion is the common pre-answer merits risk, not the only one.

Law: CPLR 3212(a); CPLR 3211(c); CPLR 3213.

What changes when a motion to dismiss becomes summary judgment?

Conversion replaces a pleading test with an evidentiary test. Before conversion, the court asks whether the complaint states a cause of action. After conversion, the court asks whether the papers establish a claim or a defense sufficiently to warrant judgment as a matter of law. The resulting order resolves the merits rather than the sufficiency of the pleading.

The converted motion is then decided on the summary judgment standard. It is denied if any party shows facts sufficient to require a trial of an issue of fact. Conversion is not a shortcut to winning. It is a change of standard.

Law: CPLR 3212(b).

On an unconverted motion under CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the plaintiff has one. When a defendant submits evidentiary material, the criterion becomes whether the plaintiff has a cause of action. Even then, dismissal requires a showing that a material fact as claimed by the pleader “is not a fact at all” and that no significant dispute exists about it.

Case: Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977).

Absent conversion, the plaintiff’s affidavits are received for a limited purpose. They normally serve to remedy defects in the complaint. They are not examined to decide whether there is evidentiary support for the pleading.

Cases: Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 638 (1976); Sokol v. Leader, 74 A.D.3d 1180, 1181-1182 (2d Dep’t 2010).

The Court of Appeals has put the plaintiff’s side of this plainly. A plaintiff who stands on the complaint alone “may not be penalized for failure to make an evidentiary showing” when the pleading states a claim on its face. A motion under CPLR 3211(a)(7) limits the court to an examination of the pleadings.

Case: Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 (2013).

So the asymmetry is real. Your affidavit on a pre-answer motion will rarely be used to weigh the plaintiff’s proof, but it can be used to justify treating the motion as one for summary judgment, after which the plaintiff’s proof is weighed and the plaintiff gets to supply it. I read the moving affidavit before the memorandum of law, because the affidavit is what converts a motion, not the argument.

Therefore, the exhibits attached to a pre-answer motion are not free. They carry the risk of a merits determination built on a record created before anyone has been deposed.

Can a New York court convert a motion to dismiss without notice?

Generally no. The Court of Appeals held in Mihlovan v. Grozavu that a court may not treat a CPLR 3211 motion as one for summary judgment without adequate notice, which should be expressly given by the court. One party’s unilateral request for summary judgment is not adequate notice to the other. Narrow exceptions exist.

Case: Mihlovan v. Grozavu, 72 N.Y.2d 506, 508 and n. (1988).

Mihlovan arose from a pre-answer motion to dismiss in a defamation action. In the trial court and on appeal, both parties treated the motion solely as one to dismiss for failure to state a cause of action. The Appellate Division then characterized the ruling as a grant of summary judgment. That recharacterization was improper, because no notice of conversion had been given and neither party had otherwise signaled a summary judgment course.

Rovello had already located the source of the requirement. The 1973 amendment to CPLR 3211(c) requires that the court first provide adequate notice, so that the parties have an opportunity to make an appropriate record. A plaintiff confident in the complaint is at liberty to stand on it, unless the motion is converted.

Case: Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976).

The notice requirement has recognized exceptions, and they are the part you can accidentally trigger. The Appellate Division has collected three.

• All parties request it. Every party asks that the motion be given CPLR 3211(c) treatment. One side asking is not enough, because a party’s unilateral request for summary judgment is not adequate notice to the other.
• Charting a summary judgment course. Both sides make it unequivocally clear that they are laying bare their proof and deliberately charting a summary judgment course.
• Pure question of law. The motion turns on a purely legal question, fully appreciated and argued by both sides, rather than on issues of fact. This exception rests on Appellate Division authority rather than a Court of Appeals holding, and it is applied narrowly.

Cases: Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251 (2d Dep’t 2012); Mihlovan v. Grozavu, 72 N.Y.2d 506, 508 and n. (1988); Four Seasons Hotels Ltd. v. Vinnik, 127 A.D.2d 310, 320 (1st Dep’t 1987).

A request for summary judgment in the alternative does not give your opponent notice. It gives the court a reason to hold you to the record you filed.

How does a converted motion compare to a motion on the pleadings or to summary judgment after discovery?

A motion on the pleadings, a converted CPLR 3211(c) motion, and a CPLR 3212 motion after discovery ask three different questions on three different records. The pleading motion tests the complaint. The converted motion tests a record assembled before depositions. The post-discovery motion tests a record built from testimony and documents actually produced.

Law: CPLR 3211(c); CPLR 3211(e); CPLR 3212(a).

What if the facts you need are still buried in discovery?

CPLR 3211(d) is the brake. Where opposition affidavits show that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allow the moving party to assert the objection in a responsive pleading, or order a continuance to permit affidavits or disclosure. The relief is discretionary.

Law: CPLR 3211(d).

CPLR 3212(f) does the same work on a summary judgment motion, including a converted one. Where opposition affidavits show that essential facts may exist but cannot then be stated, the court may deny the motion or order a continuance to permit affidavits to be obtained or disclosure to be had. Again, the court may act, not must.

Law: CPLR 3212(f).

Apply that to the defendant who invited conversion. You file the moving affidavit and the 2021 guaranty. The plaintiff answers that the signatory’s authority, the course of dealing, and the notice of default cannot be addressed without documents and testimony in your possession. The court can deny the motion and send everyone to discovery. You have now spent the one pre-answer motion CPLR 3211(e) allows, disclosed your theory, and bought nothing. Some objections survive for later assertion. The motion does not.

Law: CPLR 3211(e).

Should you move to dismiss now or preserve summary judgment for after depositions?

The choice is between a merits ruling now on a thin record and a merits ruling later on a complete one. A converted motion can end the case before an answer. It can also produce an adverse determination on the only defense you have, decided on papers you assembled without a single deposition transcript.

Sort the question with these factors.

• Is the defense documentary and self-proving? If the 2021 guaranty, the release, or the limitations period decides everything on its face, conversion may be exactly what you want.
• Does your defense need a witness? If someone has to explain what happened, that explanation belongs in deposition testimony, not in a pre-answer affidavit.
• What does the plaintiff still lack? If the plaintiff is missing proof it will later obtain from you, conversion hands it an early opportunity to ask for discovery under CPLR 3211(d) and, after conversion, CPLR 3212(f).
• Is the issue purely legal? A motion resting on a pure question of law that both sides fully argue may be converted without express notice under the Appellate Division exception. Know that before you brief it.
• Do your papers read like summary judgment? Laying bare your proof, when the other side does the same, can satisfy an exception to the notice requirement.

Dismissal on the pleadings is a door out of the courthouse. Conversion is a door into the merits. They are not the same door.

What should you ask your lawyer before the motion to dismiss is filed?

Ask one direct question first: do these papers invite conversion under CPLR 3211(c)? Then ask for the answer in writing, naming the specific affidavit and the specific exhibits that create the risk. A motion to dismiss that reads like a summary judgment motion will sometimes be treated as one, and the recognized exceptions do not require the court’s advance warning.

Concrete steps for the next few days:

• Confirm your response deadline. Serving a notice of motion under CPLR 3211(a) or (b) before your responsive pleading extends the time to serve that pleading until ten days after service of notice of entry of the order deciding the motion, unless that order sets a different date. The clock runs from service of notice of entry, not from the decision. Law: CPLR 3211(f).
• Ask whether the motion seeks summary judgment in the alternative. If it does, ask why. Your request does not supply notice to your opponent, but it can keep you from complaining later that you received none.
• Ask which grounds under CPLR 3211(a) are being raised. Objections under paragraphs one, three, four, five, and six are waived unless raised by that motion or in the responsive pleading. Subject matter jurisdiction, failure to state a cause of action, and failure to join a necessary party may be raised later. Only one pre-answer motion under subdivision (a) is permitted. Law: CPLR 3211(e).
• List every document the defense depends on. Name each one: the 2021 guaranty, the operating agreement, the termination letter. If the list is complete and documentary, the case for an early merits ruling is stronger.
• List every fact that requires a witness. If that list is not empty, keep the motion on the pleadings and preserve CPLR 3212 for after depositions.
• Ask what the plaintiff would say under CPLR 3211(d) in opposition, and whether the court would credit it.

I ask what the motion must prove before I ask what documents exist, because the order of those two questions decides whether an affidavit helps you or hands the case to the other side early.

A motion to dismiss argues about a pleading. A converted motion argues about your case. Decide which one you are filing before the clerk receives it.