1. (1) Grounds. A party may move to dismiss a petition on the grounds that:

   1. (i) a defense is founded on documentary evidence;
   2. (ii) the division of tax appeals lacks jurisdiction of the subject matter of the petition;
   3. (iii) the petitioner lacks legal capacity to petition;
   4. (iv) there is an action pending between the same parties on the same controversy in a court of any state or the United States; the administrative law judge need not dismiss on this ground but may make such order as justice requires;
   5. (v) the petition may not be maintained because of discharge in bankruptcy, infancy or other disability of the moving party, payment, release, or statute of limitations;
   6. (vi) the pleading fails to state a cause for relief;
   7. (vii) the division of tax appeals lacks jurisdiction over the taxpayer; or
   8. (viii) the division of tax appeals should not proceed in the absence of a person who should be a party. Only one such motion shall be made.

2. (2) Procedure.

   1. (i) Either party may submit any evidence that could properly be considered on a motion for summary determination. Whether or not issue has been joined, the administrative law judge, after adequate notice to the parties, may treat the motion as a motion for summary determination. The administrative law judge may order immediate hearing of the issues raised on the motion.
   2. (ii) Should it appear from affidavits submitted in opposition to a motion, that facts essential to justify opposition may exist but cannot then be stated, the administrative law judge may deny the motion, allowing the moving party to assert the objection in his or her responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained, or may make such other order as may be just.
3. (3) Review. A determination of an administrative law judge denying the motion to dismiss is not subject to review by the tribunal.

4. (4) Notice of intent to dismiss petition. The supervising administrative law judge on his or her own motion may, upon notice to the parties, issue a determination dismissing the petition on the ground that: The notice of intent to dismiss shall inform the parties of the facts and the reasons providing the basis for the intended dismissal. The notice of intent to dismiss shall also provide the parties with 30 days to submit written comments on the proposed dismissal.

   1. (i) the division of tax appeals lacks jurisdiction of the subject matter of the petition; or
   2. (ii) the division of tax appeals lacks jurisdiction over the taxpayer.
5. (5) Motion to dismiss exception. Any party may move to dismiss an exception on the ground that the exception was not filed within 30 days of the issuance of the administrative law judge determination as provided for in Tax Law, section 2006(7).

6. (6) Notice of intent to dismiss exception. The tribunal on its own motion may, upon notice to the parties, issue a decision dismissing the exception on the ground that the tribunal lacks jurisdiction over the subject matter of the exception. The notice of intent to dismiss shall be issued in the same manner as that set forth in paragraph (4) of this subdivision.

   (b) Motion for summary determination.

7. (1) General. After issue has been joined (see section 3000.4[c] of this Part), any party may move for summary determination. Such motion shall be supported by an affidavit, by a copy of the pleadings and by other available proof. The affidavit, made by a person having knowledge of the facts, shall recite all the material facts and show that there is no material issue of fact, and that the facts mandate a determination in the moving party's favor. The motion shall be granted if, upon all the papers and proof submitted, the administrative law judge finds that it has been established sufficiently that no material and triable issue of fact is presented and that the administrative law judge can, therefore, as a matter of law, issue a determination in favor of any party. The motion shall be denied if any party shows facts sufficient to require a hearing of any material and triable issue of fact. Where it appears that a party, other than the moving party, is entitled to a summary determination, the administrative law judge may grant such determination without the necessity of a cross-motion. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot be stated, the administrative law judge may deny the motion or may order a continuance to permit affidavits or admissions to be obtained and may make such other order as may be just.

8. (2) Review. A determination of an administrative law judge denying the motion for summary determination is not subject to review by the tribunal (see section 3000.5[f] of this Part).

   (c) Application of CPLR.

   Where not otherwise in conflict with this Part, a motion to dismiss filed pursuant to this section shall be subject to the same provisions as motions filed pursuant to section 3211 of the CPLR and a motion for summary determination filed pursuant to this section shall be subject to the same provisions as motions filed pursuant to section 3212 of the CPLR.

(a) Motion to dismiss.