Commercial Division Blog

Posted: August 21, 2020 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Standard for Amending a Complaint Lower Than Standard for Surviving a Motion to Dismiss

On August 19, 2020, the Second Department issued a decision in Katz v. Hampton Hills Assoc. Gen. Partnership, 2020 NY Slip Op. 04545, holding that a decision that the plaintiffs had met the standard for amending their complaint did not mean that they had met the higher burden needed to survive a motion to dismiss, explaining:

Contrary to the plaintiffs' contentions, the Supreme Court's determination that certain causes of action should be dismissed pursuant to CPLR 3211(a) was not precluded by this Court's determination on a prior appeal that similar causes of action were not palpably insufficient nor patently devoid of merit. The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same question in the same case. On the prior appeal, we determined only that the plaintiffs' proposed amendments were not so palpably insufficient as to warrant denial of the plaintiffs' motion to amend. On an ensuing motion to dismiss, however, the standard is whether the facts as alleged fit within any cognizable legal theory.

(Internal citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. Indeed, as this decision shows, a court might allow a plaintiff to amend its claims even though the amended complaint fails to state a claim. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have a question regarding whether it is too late to amend your claims or answer.