The issue of the reach of a post-answer CPLR 3211 motion and whether it should have been brought as a CPLR 3212 motion came up in an accounting malpractice case in Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C. 2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022 Platkin, J. Supreme Court, Albany County.

“Notwithstanding the foregoing, [very significant litigation events] defendants moved for dismissal of the complaint under CPLR 3211 (a) (7) and (c), on the grounds that: (1) Pioneer’s claims are partially barred by the expiration of the statute of limitations; (2) the claims for the remaining years must be dismissed because Pioneer was presented with forged financial statements, and, therefore, never relied upon defendants’ actual audit reports; and (3) TBC’s audit reports are not the proximate cause of Pioneer’s alleged losses (see NYSCEF Doc No. 156). Defendants submit 85 exhibits in support of their motion, including letters, emails, financial statements, deposition transcripts and an affidavit.

Pioneer opposes the motion on the grounds that: (1) the complaint states a claim for [*3]accounting malpractice, and defendants do not argue otherwise; (2) binding precedent of the{**77 Misc 3d at 363} Appellate Division, Third Department precludes the consideration of the 85 exhibits submitted and relied upon by defendants to support their motion under CPLR 3211 (a) (7); and (3) TBC’s arguments for dismissal fail on the merits, even if they properly were before the court.”

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Nor did defendants move under CPLR 3211 (a) (5) to interpose the defense of the partial expiration of the statute of limitations, and their time in which to do so similarly has expired (see CPLR 3211 [e]). To be sure, defendants preserved the defense in their answer (see id.; see also answer ¶ 156), {**77 Misc 3d at 365}thereby affording them the opportunity to move for summary judgment on the defense or present it at trial (see DeSanctis v Laudeman, 169 AD2d 1026, 1027 [3d Dept 1991] [“although we agree that the issue was properly preserved by defendant, . . . because responsive pleadings were served, defendant’s motion should have been brought pursuant to CPLR 3212 instead of pursuant to CPLR 3211”]; see also CPLR 3212 [c] [contemplating motions for summary judgment “on . . . the grounds enumerated in subdivision (a) or (b) of rule 3211”]).

“The court therefore concludes that defendants’ fact-based causation defense and their partial challenge to the timeliness of Pioneer’s claims should, at this juncture, be the subject of a properly supported motion for summary judgment under CPLR 3212, not a motion for dismissal under CPLR 3211 (a) (7) accompanied by an invitation for conversion under CPLR 3211 (c).

In reaching this conclusion, the court recognizes that the Court of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211 (a) (7) through the submission of “conclusive” affidavits and evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976] [“affidavits submitted by the defendant will seldom if ever warrant the relief (it) seeks unless too the affidavits establish conclusively that plaintiff has no cause of action”]), and the other Judicial Departments take a more expansive view of CPLR 3211 (a) (7) (see e.g. Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 410 [1st Dept 2021]).

But this court is obliged to follow the Third Department’s recent precedent in Carr, which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear” (182 AD3d at 668-669).

Moreover, there are sound reasons for requiring motions like the one made here by defendants to be brought under CPLR 3212. Defendants’ approach needlessly deprives the court of useful procedural tools associated with summary judgment motions, including the requirement that parties supply statements of material facts (see Rules of Commercial Div of Sup Ct [22 NYCRR] § 202.70 [g] [rule 19-a]; see also 22 NYCRR 202.8-g).”