Commercial Division Blog

Posted: January 29, 2024 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Motion to Dismiss

Court Denies Motion To Dismiss Given Grant Of Motion To Amend

On December 23, 2023, Justice Joel M. Cohen denied defendants’ motion to dismiss plaintiff’s amended complaint based on the prior granting of plaintiff’s motion to amend. The decision in O’Keefe’s Inc. d/b/a Safti First v. 400 Times Square Associates, LLC et al., Index No. 150702/2019, rejected defendants’ argument that the evidence, affidavits, and submissions by the defendants utterly refuted the plaintiff’s claims. The Court explained:    

CPLR 3211(e)'s "single motion rule" does not preclude a motion to dismiss an amended complaint so long as the challenged claims are not identical to any claims in the original complaint (Barbarito v Zahavi, 107 AD3d 416,420 [1st Dept 2013]). That said, the Court evaluated the legal sufficiency the First Amended Verified Complaint when considering Plaintiffs motion for leave to amend the complaint ( O'Keeffe's Inc. v 400 Times Sq. Assoc., LLC, 2023 N.Y. Slip Op. 32776[U], 3 [N.Y. Sup Ct, New York County 2023] citing Olam Corp. v Thayer, 2021 N.Y. Slip Op. 30345[U], 1 [N.Y. Sup Ct, New York County 2021]). As explained by the Court in Olam, "it would be pointless to grant leave to file an amended complaint if the Court concludes that the complaint will, in tum, be dismissed under CPLR 3211" ( Olam citing Scott v. Bell Atl. Corp.).

The Court has considered the considerable evidence, affidavits, and other submissions made by the parties and again finds - again - that the Amended Complaint sets forth plausible claims for relief (assuming the truth of its factual allegations). Contrary to Defendants' assertions, the correspondence, invoices, and other documents submitted in connection with this motion do not utterly refute the Plaintiffs quasi-contract claims. Accordingly, the motion to dismiss is denied without prejudice to Defendants testing the legal sufficiency of the claims on a summary judgment record or at trial.

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