Being sued does not necessarily mean your first response should be an answer. After being served with a lawsuit, one of the first strategic decisions is how to respond. In some cases, the appropriate response may be an answer that denies the plaintiff’s allegations, asserts affirmative defenses, and potentially brings counterclaims. In others, there may be grounds to ask the court to dismiss some or all the lawsuit before the case proceeds further.
New York Civil Practice Law and Rules (“CPLR”) and the Federal Rules of Civil Procedure (“FCR”) identify several grounds on which a defendant may move to dismiss a claim, including lack of personal or subject-matter jurisdiction, documentary evidence, statute of limitations, release, arbitration, and failure to state a cause of action. But a possible dismissal argument does not automatically mean filing the motion is the best strategy. The decision requires examining the complaint, the available defenses, the evidence, the business’s own potential claims, and what the business is trying to accomplish in the litigation.
An Answer and a Motion to Dismiss Serve Different Purposes
An answer responds directly to the complaint’s allegations. The defendant generally admits allegations it agrees with, denies those it disputes, and may state that it lacks sufficient information to admit or deny others. The answer also provides an opportunity to assert affirmative defenses. The CPLR expressly requires certain matters to be affirmatively pleaded, including defenses such as payment, release, statute of limitations, statute of frauds, res judicata, and arbitration and award.
A motion to dismiss takes a different approach. Instead of immediately answering the allegations, the defendant asks the court to dispose of one or more claims because of a legal or procedural defect. Depending on the grounds asserted and the outcome, a successful motion might eliminate the entire lawsuit, narrow the remaining claims, or significantly change the scope of the dispute.
A Motion to Dismiss Usually Focuses on Legal Defects
A common misconception is that a business should file a motion to dismiss simply because it believes the plaintiff’s allegations are false. That is not necessarily how a motion to dismiss works. Some defenses depend primarily on factual disputes that cannot ordinarily be resolved simply by asking the court to choose the defendant’s version of events over the plaintiff’s at the beginning of the case. If the plaintiff alleges a contract breach and the defendant’s position is that it fully performed, for example, that dispute may ultimately depend on documents, witnesses, discovery, and other evidence.
Other defenses may be suitable for an early motion because they present a threshold legal issue. The CPLR permits dismissal on specified grounds, including documentary evidence, lack of jurisdiction, another action pending, arbitration and award, payment, release, res judicata, statute of limitations, statute of frauds, failure to state a cause of action, and the absence of a necessary party. The strength of a potential motion therefore depends not simply on whether the business disputes the lawsuit, but on why the business contends the claim should not proceed.
Documentary Evidence Can Sometimes Change the Analysis
Commercial lawsuits frequently involve contracts, amendments, releases, settlement agreements, corporate records, and other written documents. In some circumstances, documentary evidence may support a motion to dismiss under the CPLR.
Suppose a plaintiff claims that a business breached an agreement by terminating it before a five-year term expired, but the governing agreement expressly permits either party to terminate without cause on 30 days’ notice. Or a plaintiff seeks payment despite having signed a release covering the disputed claim. Depending on the circumstances, documents like these may create an opportunity to challenge the claim before the parties proceed through extensive discovery.
But the mere existence of documents favorable to the defendant does not automatically make dismissal appropriate. Counsel must evaluate whether those documents can properly be considered at that stage and whether they actually resolve the relevant legal issue.
Filing an Answer Preserves the Business’s Side of the Dispute
Sometimes the better initial strategy is to answer the complaint and move the case forward. An answer allows the business to deny disputed allegations, assert affirmative defenses, and state its legal positions in the pleadings. It may also include counterclaims against the plaintiff when the business has its own causes of action arising from the parties’ relationship. New York pleading rules separately provide for counterclaims, and the CPLR addresses both defenses and counterclaims as part of the defendant’s response to litigation.
This matters in commercial litigation because business disputes are rarely one-sided. A contractor sued for delay may contend that the owner failed to provide access to the project. A company sued for withholding payment may contend that the vendor failed to perform. A shareholder named as a defendant may have claims arising from the same corporate dispute. The answer can begin presenting that broader picture.
Affirmative Defenses Evaluation
Do not treat an answer as a document that merely denies everything in the complaint. Affirmative defenses can have significant consequences, and certain defenses may be waived if not raised in time. The CPLR contains specific waiver rules for various defenses. For example, certain jurisdictional objections can be lost if the defendant does not raise them in the initial motion or responsive pleading, and some defenses listed in the CPLR are waived unless asserted by motion or in the responsive pleading.
That makes the initial review of the lawsuit particularly important. Counsel should consider not only the plaintiff’s allegations but also service, jurisdiction, contractual defenses, statutes of limitations, releases, arbitration provisions, and other issues that may need to be preserved at the outset.
A Motion to Dismiss Can Affect the Timing of the Answer
When a qualifying pre-answer motion to dismiss is timely served in New York, the CPLR generally extends the time to serve the responsive pleading until ten days after service of notice of entry of the order deciding the motion. That procedural effect can matter strategically, but it should not be viewed simply to delay answering. A motion requires legal research, briefing, and potentially oral argument. If the motion is denied, the business may still need to answer and proceed into discovery. The business should therefore evaluate whether the potential benefit of the motion justifies the time and resources required to litigate it.
Partial Dismissal Can Still Be Significant
The choice is not always between dismissing the entire lawsuit and answering everything. CPLR 3211 allows a defendant to seek dismissal of one or more causes of action. That can matter in a business case with multiple theories of liability. A complaint might assert breach of contract together with fraud, unjust enrichment, fiduciary-duty claims, or other causes of action. Even if the central dispute survives, eliminating legally deficient claims may narrow discovery, reduce potential exposure, simplify the case, and focus the litigation on the issues that matter. A business should therefore evaluate a motion not only by asking whether it can end the entire lawsuit, but also whether it can meaningfully reshape the case.
Counterclaims Can Affect the Decision
The business should also consider its own claims before deciding how to respond. A defendant may have substantial claims against the plaintiff arising from the same transaction or business relationship. Those claims can affect both litigation strategy and settlement dynamics.
For example, a vendor suing for unpaid invoices may itself have failed to deliver required services, causing the defendant substantial losses. A former business partner seeking money may have diverted company opportunities or withheld records. A company accused of wrongful termination of a contract may contend that the plaintiff materially breached first. Understanding those potential claims before choosing an initial response helps ensure the business is not viewing the lawsuit solely from a defensive perspective.
The Strongest Response Depends on the Case
No universal rule dictates whether businesses should always answer a complaint or always move to dismiss. The appropriate strategy depends on the claims asserted, the legal defects in the complaint, available documents, potential affirmative defenses and counterclaims, and the business’s broader objectives.
Sometimes an early motion can eliminate a case or substantially narrow it. In other situations, answering promptly and moving toward discovery may put the business in a better position to establish the facts, pursue counterclaims, and ultimately seek dismissal later in the litigation. And in some cases, the strongest approach may involve seeking dismissal of certain claims while preparing to defend others. The key is to make the decision deliberately. Once a business is served, its first response can affect which defenses remain available, when it asserts counterclaims, how quickly discovery begins, and the overall direction of the litigation.
Alisme Law represents businesses, owners, shareholders, and executives in commercial litigation throughout New York. When a business is sued, we evaluate the complaint, potential dismissal arguments, affirmative defenses, counterclaims, and the evidence to determine how the business should respond.
Contact us to schedule a confidential case evaluation at 917-540-8432.
This article is for informational purposes only and does not constitute legal advice.