Offit Kurman Blogs
Commercial Litigation
Understanding Motions to Dismiss: Why They Are Not the Easy Escape Many Defendants Hope For
No one wants to be a defendant in a lawsuit. This is especially so when you feel like the claims against you are inaccurate and/or spurious. As a result, if you've been sued, one of your first questions may be: "Can we get this case thrown out right away?" It's a natural reaction. Litigation is expensive, time-consuming, and stressful. The idea of ending a lawsuit before spending money on document exchanges, depositions, court appearances, and even a trial is appealing to anyone facing legal action. That is where a motion to dismiss comes in. A motion to dismiss asks the court to end a lawsuit or at least dispense with individual claims at a very early stage, often before any evidence has been exchanged between the parties. While that sounds straightforward, motions to dismiss are often much harder to win than most people expect. Understanding why can help you make a more informed decision about whether pursuing one makes sense in your case. What Is a Motion to Dismiss? Put simply, a motion to dismiss is a formal application asking the court to decide that, even if everything alleged in the lawsuit were true, the plaintiff still lacks a valid legal claim. At this early stage of a case, the court generally is not deciding who is telling the truth. Instead, the court is determining whether what the plaintiff has asserted in the complaint could, even if proven later, legally support a claim. This can be one of the most confusing aspects of litigation for defendants. It is easy to read a complaint and immediately conclude that it contains and/or identify exaggerations, inaccuracies, or outright falsehoods. A defendant considering a motion to dismiss might understandably ask: "Why would a court ever assume any of this is true?" The answer is that, with a few limited exceptions, it legally has to in order to apply applicable law governing motions to dismiss. In doing so, it is often creating a legal fiction solely for the purpose of deciding the motion to dismiss and is not deciding whether the allegations are actually true. It merely, temporarily, accepts them as true to decide whether the lawsuit is legally sufficient to move forward. If the answer is no—if even accepting all the allegations as true, there is still no claim—the court can dismiss a case right away, before any discovery, on the ground that there is no legally supportable claim. Those limited exceptions (that the court does not have to accept as true) are bald allegations that amount to conclusions only and are really fact-free; allegations that are conclusively refuted by documentary evidence. For instance, if the complaint simply accuses a defendant of committing fraud but does not say how, the Court need not accept it as true. Similarly, if there is a document or record that shows, in fact, that the defendant did not commit fraud, the Court does not need to accept that allegation as true. Therefore, in addition to the above, where the claims are refuted by documentary evidence or not supported by sufficient facts, the court can also dismiss a case right away, before any discovery, on the ground that there is no legally supportable claim. Why Motions to Dismiss Are Difficult to Win Motions to dismiss are extremely difficult to win. This is because the court must create the legal fiction discussed above. It looks at a complaint in the light most favorable to the person who filed it, and therefore, the burden on the person seeking dismissal is significant. To win, the defendant typically must show that the plaintiff would not be entitled to relief under any reasonable interpretation of the alleged facts, or that records definitively undermine their claim. In other words, the defendant must show that the lawsuit is legally defective from the start as it is written. That is a high bar. Many defendants believe they are right on the facts and have evidence to prove it. While they may very well be correct, since a motion to dismiss comes into play before evidence is exchanged, if there are any issues that cannot be definitively decided, the case must move on to the discovery phase. As evidence usually comes into play later in the case, after discovery has occurred, unless it is available to the court on the motion to dismiss, it cannot be considered in dismissing the case. As a result, cases that ultimately fail may survive an early motion to dismiss. Some of the most spurious cases require discovery to show their lack of merit. Many losing cases can defeat motions to dismiss if they reach the minimal bar of plausibly stating a claim. What Happens If the Motion Is Denied? One of the most important points for clients to understand is that losing a motion to dismiss does not mean losing the case. It simply means the lawsuit will continue. The movant will answer the complaint. The parties then move into discovery, where they exchange documents, take depositions, and gather evidence. The defendant still has the opportunity to challenge the plaintiff's claims later through a motion for summary judgment or at trial. A denial means only that the court believes the plaintiff has alleged enough facts for the case to proceed. It is not a determination that the plaintiff is correct. The Cost-Benefit Analysis A motion to dismiss necessarily creates additional legal fees at the beginning of a case; therefore, every client should be educated on to the risks and strategic aims of submitting this permissive filing. Preparing the motion often requires detailed legal research, drafting extensive papers, reviewing opposition papers, preparing a reply, and often appearing in court for oral argument. If the motion is denied, the case generally returns to the same stage it would have reached if no motion had been filed. For that reason, clients should view a motion to dismiss as an investment with both potential rewards and risks. The reward is obvious: a successful motion could end the lawsuit early and save substantial litigation costs. The risk is that the client may spend money pursuing the motion only to end up proceeding to discovery anyway. Does Winning End the Case Forever? Not necessarily. In some situations, a successful dismissal allows the plaintiff to revise the complaint and try again. The court may determine that the lawsuit, as written, is inadequate and give the plaintiff an opportunity to fix the problem. In other cases, the court dismisses the claims permanently. This is often referred to as a dismissal "with prejudice." When that occurs, the plaintiff generally cannot bring the same claims again, although an appeal may still be possible. The likelihood of a permanent dismissal depends on the facts of the case, the legal issues involved, and the court handling the matter. A client should include this in its risk-reward analysis discussed above in when deciding to make such a motion. So When Does a Motion to Dismiss Make Sense? Despite the challenges, motions to dismiss remain valuable tools in many cases. They can be appropriate when there is a strong legal defect in the complaint, when key claims are clearly barred by law, or when eliminating claims early could significantly reduce litigation costs and exposure. In some situations, even filing the motion can help clarify the issues in dispute and force the plaintiff to identify the legal basis for the case. The key is understanding that a motion to dismiss is not a guaranteed shortcut. It is a strategic decision that should be weighed carefully against the costs, risks, and potential benefits. The Bottom Line Many people enter litigation hoping there is a quick way to make the lawsuit disappear. Occasionally, a motion to dismiss provides exactly that result. More often, however, the case proceeds beyond the initial stage and into discovery. The decision to file a motion to dismiss should therefore be made with realistic expectations. The client should go in with eyes wide open. It can be a powerful tool when the circumstances are right, but it is not a magic wand. The most important thing is to understand both the opportunities and the risks before making the investment. An informed client is better positioned to make sound decisions, manage litigation costs, and develop an effective overall case strategy.
September 17, 2026
Construction
Will New Rules Kill Mid-Level Construction in NYC?
In politics, in building, in personal goods, and in anything else, for years now I’ve been asking the same question…how is that going to be paid for? New government programs sound great if the funds are available, but if they will require raising taxes, in my lifetime, it has been a nonstarter. My kid wants a drone for Christmas, but I can’t afford it. And for builders and contractors, new legislation has led to another step in the direction of development being just too darn expensive. RPAPL 881 was amended and recently signed into law by New York Governor Hochul, and it contains provisions that will drive development costs even higher. In my opinion, amendments will either cause or contribute to pricing the small and medium size players out of the market, thereby impacting all construction projects other than the very, very biggest. Anecdotally, New York buildings have been turning over beautifully at all economies of scale. Many tenements of old have been replaced by new, more modern low and medium rises and other types of buildings. The city now has a vibrant new look, and I don’t just mean the skyscrapers. I would hate to see that stunted. The principle behind amending RPAPL 881 was a good one, to make an extraordinarily ambiguous statute more specific. Its aim was to provide guidance and to manage everyone’s expectations. However, in my reading of the final language, even though the governor has requested amendments, the bill primarily opens new cans of worms rather than closing them. For instance, there’s expanded consideration of the occupants of multiple dwellings. Under the old law, developers typically only dealt with neighboring boards and building owners. Now they are going to have to deal with the tenants and occupants, too. Litigation is going to be untenable insofar as requiring joinder of numerous parties, to effectuate service on that expanded number of people, and to engage with many more parties in the litigation process. Negotiations will be just as onerous. Agreements will have to specifically consider the needs and wants of everyone affected down to the individual. Each individual in a building will have expanded standing and a larger seat at the table to assert their own priorities. In addition, the new bill provides for the potential of a license fee for a reduction in value of a neighboring property. This will impact costs across multiple areas. In litigation, it will require expanded expert testimony and fact-finding, and in a negotiation context, practitioners will be seeking fees higher than what was previously available on this basis. In my humble opinion, the largest problem with this bill, actually benefits the developer over the neighbor. I read the legislation as having a private takings clause. The new bill permits a court to grant a developer the right to underpin the adjoining property. If you understand what underpinning is, you will know that this inclusion constitutes a permanent takings clause that does not have to involve any government. Eminent domain in a private context, is not permissible. Only governments may seize property from others on a permanent basis, and even in those cases they must provide fair market value (which, if implemented, would be an additional cost to the developer) as a result, I believe this provision to be unconstitutional. In this world where insurance costs for New York development are through the roof, or strict liability should cause any developer to look over their shoulder, anything that further drives up development costs, in my opinion, is going to kill mid to low-level development. Jobs that are under $5 million, those jobs that the big guys don’t want to do, the risk will simply be too high for the medium and smaller players. I fear that aside from the ivory towers, the buildings in NYC will be left to crumble. There will be too few willing to take the risk due to ever escalating costs. The underpinning rule is at least one portion of the bill that I believe to be unconstitutional, so if that can be attacked, perhaps they will go back to the drawing board and start again. **The impressions contained herein are the impressions and interpretations of the author based upon review of the new statutory language, synthesized with existing law; not on any updated decisional authority.
December 30, 2025
