You only get one motion to dismiss.

CPLR 3211(e) gives you one pre-answer motion to dismiss, and no more. Grounds left out of that motion are not simply postponed. Some are waived outright, and the defense that the court never acquired jurisdiction over you is first among them. Every ground in subdivision (a) has to be inventoried before anything is filed.

What does CPLR 3211(e) say about how many motions to dismiss you get?

CPLR 3211(e) allows one pre-answer motion to dismiss. The text is short: at any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and “no more than one such motion shall be permitted.” One motion, as many grounds as you actually have.

Two things follow from that sentence. The window closes when the responsive pleading is required to be served, not when you get around to serving it. And the motion is singular. You may stack ten grounds into it. You may not file it, lose, and file another. Courts recognize narrow exceptions, such as a motion aimed at genuinely new claims in an amended complaint, or a prompt refiling after a purely procedural rejection. Plan around the rule, not the exceptions.

The motion also moves your answer date. Serving a notice of motion under subdivision (a) or (b) before service of the responsive pleading extends the time to serve that pleading until ten days after service of notice of entry of the order.

Law: CPLR 3211(e); CPLR 3211(f).

How do the eleven grounds in CPLR 3211(a) sort into tiers?

The eleven grounds in CPLR 3211(a) do not share one waiver rule. Subdivision (e) splits them into groups and treats each group differently. Paragraphs one, three, four, five and six are waived unless raised by motion or answer. Paragraphs two, seven and ten survive. Paragraphs eight and nine carry their own trap.

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

Which defenses survive if you skip the motion and just answer?

Tier one defenses survive an answer. CPLR 3211(e) waives an objection or defense based on paragraphs one, three, four, five and six of subdivision (a) unless it is raised either by the motion or in the responsive pleading. Documentary evidence, capacity, another pending action, the preclusion family, and an improper counterclaim all keep if you plead them.

Name the grounds precisely. The pleading has to track them.

• (a)(1) a defense founded upon documentary evidence. The 2021 promissory note, the release, the signed settlement agreement.
• (a)(3) the party asserting the cause of action has no legal capacity to sue.
• (a)(4) another action pending between the same parties for the same cause of action in any state or United States court. The court need not dismiss; it may make such order as justice requires.
• (a)(5) arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds.
• (a)(6) a counterclaim that may not properly be interposed in the action.

So a limitations defense is not lost by declining to move. It is lost by silence. Neither move on it nor plead it, and the case is tried as though the clock never ran.

Law: CPLR 3211(a)(1), (3), (4), (5), (6); CPLR 3211(e).

Can a motion to dismiss waive your personal jurisdiction defense?

A motion to dismiss waives a personal jurisdiction defense whenever the moving party moves on a subdivision (a) ground and leaves the objection out. CPLR 3211(e) provides that an objection under paragraph eight or nine is waived if a party moves on any subdivision (a) ground without raising it. Any ground, not just a jurisdictional one.

Paragraph eight is lack of jurisdiction over the person of the defendant. Paragraph nine is lack of jurisdiction in an action where service was made under CPLR 314, which governs service outside the state that does not give personal jurisdiction, or CPLR 315, which authorizes service by publication.

Apply it. You are a Connecticut company sued in New York on four causes of action. Counsel files a tidy motion under (a)(7) aimed at the thin fraud count and says nothing about jurisdiction. The motion succeeds. The fraud count is dismissed. The objection that New York never had jurisdiction over you is waived by the act of moving. Therefore, you litigate the three surviving claims in a forum you could have left.

The second half of the sentence closes the other exit. Make no objection under subdivision (a) at all, and the paragraph eight or nine objection is waived unless the responsive pleading raises it. There is no third path.

The grounds you leave out of the one motion are not being saved for later. Most of them are simply gone.

Law: CPLR 3211(a)(8), (9); CPLR 3211(e); CPLR 314; CPLR 315.

Which grounds survive no matter what you file?

Three grounds survive. CPLR 3211(e) states that a motion based upon a ground specified in paragraph two, seven or ten may be made at any subsequent time or in a later pleading, if one is permitted. Those are subject matter jurisdiction, failure to state a cause of action, and the absence of a person who should be a party.

Read that sentence for what it grants. It protects the ground. It does not license a second pre-answer motion on grounds you already held when you filed the first one. The Court of Appeals has put it plainly: the failure-to-state defense is not lost by leaving it out of the one motion, but it may be raised later only “in another form,” not in a second CPLR 3211 motion. The later vehicle is the answer, a permitted motion, or summary judgment, not a second bite at the same apple.

Paragraph eleven, immunity under section 720-a of the Not-for-Profit Corporation Law for an uncompensated officer, director or trustee of a qualifying nonprofit, is not named in any of the waiver sentences of subdivision (e). It is also not automatic. The court dismisses on that ground only if it finds the defendant entitled to the benefits of section 720-a and finds no reasonable probability that the conduct alleged was gross negligence or was intended to cause harm. Treat it as a ground to raise in the motion and to plead in the answer.

Law: CPLR 3211(a)(2), (7), (10), (11); CPLR 3211(e); N-PCL 720-a. Case: McLearn v. Cowen & Co., 60 N.Y.2d 686, 689 (1983).

What is the sixty-day rule for an improper service defense?

The sixty-day rule converts a pleaded service objection into a deadline. Under CPLR 3211(e), an objection that the papers were not properly served is waived if the objecting party, having raised that objection in a pleading, does not move for judgment on that ground within sixty days after serving the pleading. Pleading it is step one of two.

The sentence reaches a summons and complaint, a summons with notice, and a notice of petition and petition. The court may extend the sixty days, but only upon the ground of undue hardship. An answer that recites improper service and then sits in a file does nothing. Absent an extension, the objection is waived on day sixty-one and the court’s jurisdiction over your person stands.

That sentence does not reach every proceeding. By its terms the sixty-day requirement does not apply in a proceeding to collect a debt arising out of a consumer credit transaction where a consumer is a defendant, or in a summary proceeding under subdivision one or two of RPAPL 711. The carve-out runs to that sentence alone. The rest of subdivision (e) still governs. A commercial case is almost never in that lane. Read the text if yours might be.

One procedural detail is easy to miss. Papers in opposition to a motion based on improper service must contain a copy of the proof of service, whether or not previously filed.

Note what the rule is not. It runs from the pleading, not from the motion. It is separate from the waiver that follows a motion made without the paragraph eight or nine objection. You can clear one and still be destroyed by the other.

Law: CPLR 3211(e); RPAPL 711(1), (2).

What did Held v. Kaufman decide about the single motion rule?

Held v. Kaufman is the Court of Appeals decision that fixes both the purpose and the outer edge of the single motion rule. The case arose from a pre-answer dismissal. The defendants raised additional grounds for dismissal in a reply affidavit rather than in a second motion, and the question was whether that violated CPLR 3211(e).

The plaintiff alleged a 1982 agreement promising him a six percent partnership interest in a mortgage lending venture in exchange for his help launching it and an interest in another real estate partnership. Supreme Court denied the motion to dismiss, ruling that the additional defenses raised in reply violated the single motion rule. The Appellate Division reversed and granted dismissal.

The Court of Appeals agreed with the Appellate Division that the additional grounds could be considered, but concluded that dismissal of the complaint was not warranted. Two lessons follow. Enlarging the argument within your one motion is not the same as making a second motion. And winning the procedural point is not winning the case.

Case: Held v. Kaufman, 91 N.Y.2d 425 (1998).

Should you move to dismiss at all, or answer and preserve everything?

The choice between moving and answering is a waiver calculation before it is a tactical one. A motion spends the single opportunity and, if it omits paragraphs eight and nine, destroys the jurisdictional defense. An answer costs nothing in waiver terms provided every tier one and tier two defense appears in it, and provided a pleaded service objection is calendared.

I read the affidavit of service before I read the first cause of action. I list all eleven grounds in subdivision (a) against the complaint before deciding whether to move or to answer.

Two provisions soften the edges. Under CPLR 3211(d), where facts essential to opposing the motion may exist but cannot yet be stated, the court may deny the motion and allow the objection to be asserted in a responsive pleading, or order a continuance for further affidavits or disclosure. Under CPLR 3211(c), the court, after adequate notice to the parties, may treat the motion as one for summary judgment, and may order an immediate trial of issues raised on the motion. Neither provision gives you a second motion.

One motion. Every ground you have. Assembled before the first page is filed.

Law: CPLR 3211(c), (d).

What should you do before anything is filed in your case?

The first task in a newly served New York action is a written inventory of all eleven grounds in CPLR 3211(a), marked against the complaint, completed before any paper is drafted. The inventory decides the filing, not the other way around. Work the list below and bring the answers, and the documents, to counsel.

• Fix the date service was made and the date the responsive pleading is required. Everything in subdivision (e) runs off that date.
• Locate the summons, complaint, and affidavit of service. Note who was served, where, and how.
• (a)(1) Identify the governing documents by name: note, guaranty, operating agreement, release.
• (a)(2) Is subject matter jurisdiction sound? Monetary limits and forum-specific grants matter.
• (a)(3) Does the plaintiff have legal capacity to sue? Dissolved entity, unregistered foreign corporation, bankruptcy trustee.
• (a)(4) Is there another action pending between the same parties for the same cause of action anywhere in the United States?
• (a)(5) Run the full paragraph five list, from arbitration and award through statute of frauds.
• (a)(6) If a counterclaim is in play, may it properly be interposed?
• (a)(7) Does each cause of action plead the elements it needs?
• (a)(8) and (a)(9) Decide personal jurisdiction and service-based jurisdiction first, not last. These are the ones the motion itself can kill.
• (a)(10) Is someone missing whose absence should stop the action?
• (a)(11) If the defendant is an uncompensated officer, director or trustee of a qualifying organization, test the immunity ground against the conduct alleged.
• If the answer will plead improper service, calendar the sixty-day deadline the day the answer is served.

Then make one decision. Move on everything you have, or answer and plead everything you have. The one thing you cannot do is file a partial motion and keep the rest in reserve.

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