Commercial Division Blog

Posted: November 24, 2013 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Leave to Re-Plead Already Dismissed Claims Denied

On November 12, 2013, Justice Sherwood of the New York County Commercial Division issued a decision in Broadway West Enterprises, Ltd. v. Doral Money, Inc., 2013 NY Slip Op. 32912(U), denying plaintiff's motion, made shortly before the close of discovery, for leave to file a second amended complaint to supplement factual allegations contained in the first amended complaint, re-join two previously dismissed defendants, add a new defendant, and drop two defendants.

Broadway West Enterprises arose out of the sale of real property in Brooklyn. Plaintiff claimed that it was defrauded out of a 2% brokerage commission on the sale. Even though leave to replead is supposed to be freely granted and the defendants did not claim that they would suffer any prejudice from permitting plaintiff's proposed amendments, Justice Sherwood denied the motion, which he characterized as "a blatant effort to rescue abandoned claims and to obtain a proverbial additional bite of the apple as to claims that the court previously dismissed," and for which plaintiff never sought leave to renew or reargue.

Broadway West Enterprises shows that plaintiffs in commercial litigation should not use a motion to amend as a back door mechanism to reassert claims that already have been dismissed. Justice Sherwood's decision provides a helpful precedent for defendants to cite in opposing such motions.