On March 20, 2015, Justice Sherwood of the New York County Commercial Division issued a decision in SGM Holdings LLC v. Lisiak, 2015 NY Slip Op. 30411(U), applying the one motion rule.
In SGM Holdings, the plaintiffs opposed a motion to dismiss their amended complaint on, among other grounds, the basis of the one motion rule. The trial court agreed, in part, with the plaintiffs, explaining:
[P]laintiffs assert that the motion violates the one motion rule of CPLR 3211(e) which provides that at any time before service of the responsive pleading is required, a party may move to dismiss on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall· be permitted. The rule precludes successive motions to dismiss where the party seeking dismissal could have sought dismissal in a prior CPLR 3211 motion but failed to do so. The one motion rule, however, does not bar a successive motion to dismiss that addresses causes of action made for the first time in an amended pleading. Additionally, challenges to the court’s subject matter jurisdiction are never waived, and therefore are not subject to the one motion rule.
(Internal quotations and citations omitted) (emphasis added). The court went on to examine the causes of action at issue in the motion. With respect to the plaintiffs’ fourth cause of action, the court held that the addition of new factual allegations did “not change the nature of the claim. It merely add[ed] factual details to the claim.” Because the court refused to dismiss that cause of action for failure to state a claim in response to the defendants’ initial motion to dismiss, the one motion rule prevented defendants from moving to dismiss that cause of action for the same reason in their second motion. However, the defendants also moved to dismiss the fourth cause of action on the ground of mootness. The court held that such a motion was a permissible notwithstanding the one motion rule because “[m]ootness is a challenge to the court’s subject matter jurisdiction which is never waived.” (Emphasis added).
Similarly, the defendants moved to dismiss the plaintiffs’ third and seventh causes of action on the grounds of mootness and seeking “an impermissible advisory opinion,” respectively. Those challenges, too, went to the court’s subject matter jurisdiction and thus were not barred by the one motion rule.