Commercial Division Blog

Posted: August 31, 2019 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Filing Amended Complaint Did Not Moot Pending Motion to Dismiss

On August 22, 2019, the Fourth Department issued a decision in Paramax Corp. v. VoIP Supply, LLC, 2019 NY Slip Op. 06267, holding that filing an amended complaint did not moot a pending motion to dismiss, explaining:

Initially, we take judicial notice of an amended complaint filed by plaintiff after Supreme Court ruled on defendants' motion, and incorporate its factual allegations into our CPLR 3211(a)(7) analysis, in which we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. We reject plaintiff's contention that defendants' appeal is rendered moot by the filing of an amended complaint. Although an appeal from an order denying a motion to dismiss a complaint may be moot when that complaint has been superseded by an amended complaint, such an appeal is not moot where, as here the new pleading does not substantively alter the existing causes of action.

(Internal quotations and citations omitted).

Because New York procedural rules give a litigant the right to amend its complaint (at least) once without the court's permission, the situation described in this decision--an amended complaint being filed while a motion to dismiss is pending--is not all that rare. Contact Schlam Stone & Dolan partner John Lundin at if you or a client face a situation where the plaintiff has amended its complaint while a motion to dismiss is pending.