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Current Developments in the Commercial Divisions of the
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Posted: December 26, 2016

Court Agrees to Decide Late-Filed Motion to Dismiss

On December 8, 2016, Justice Scarpulla of the New York County Commercial Division issued a decision in Magder v. Lee, 2016 NY Slip Op. 32440(U), deciding a motion to dismiss even though it was untimely, explaining:

A pre-answer motion to dismiss, pursuant to CPLR 3211(a), must be made before service of the responsive pleading is required. In the interest of justice, the court may extend the time to respond upon good cause shown. Where a defendant fails to make a timely, pre-answer motion to dismiss and fails to demonstrate good cause for such delay, denial of the motion is proper.

Magder served the summons and complaint on Lee and MFCG via “nail and mail” service, pursuant to CPLR 308 (4), on January 5, 2015. Where the summons and complaint are served pursuant to CPLR 308(4), service of an answer shall be made within thirty days after service is complete. Service is complete ten days after filing the proof of service with the clerk of the court. Here, the affidavits of service were filed with the clerk of the court on January 7, 2015. Lee and MFCG served this motion, through the New York State Courts Electronic Filing System, on February 23, 2015. Thus, Defendants’ motion is untimely.

Defendants do not dispute that their motion was served late. Nor do they offer any excuse for the delay or seek an extension of time pursuant to CPLR 2004. Instead, their attorney argues that the moving defendants moved to dismiss as expeditiously as possible, without further explanation. Statutory time frames are not options, they are requirements, to be taken seriously by the parties. However, because I find that a significant portion of Defendants’ motion is meritorious, in the interests of justice and to avoid unnecessary additional litigation, I will not deny the motion, which was filed approximately one week after defendants’ time to respond had expired, on the basis of timeliness.

(Internal quotations and citations omitted).

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