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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 22, 2021

Motion Court Erred in Considering Dismissal Motion Raised for First Time on Reply

On August 18, 2021, the Second Department issued a decision in Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC, 2021 N.Y. Slip Op. 04701, holding that the motion court erred in granting the defendant’s motion to dismiss under C.P.L.R. 3211 when the defendant initially moved for summary judgment under C.P.L.R. 3212 and stated–for the first time on reply–that it instead intended to move to dismiss, explaining:

In lieu of an answer, P & C Merrick moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In its reply papers, however, P & C Merrick asserted, for the first time, that it had intended to move to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). In an order entered January 11, 2018, the Supreme Court, among other things, denied, as premature, that branch of P & C Merrick’s motion which was for summary judgment dismissing the complaint insofar as asserted against it, and granted those branches of P & C Merrick’s motion which were, in effect, pursuant to CPLR 3211(a) to dismiss the causes of action alleging specific performance and breach of contract insofar as asserted against it. The plaintiff subsequently moved for leave to reargue its opposition to P &C Merrick’s motion, or alternatively, for leave to amend the complaint. In an order entered March 19, 2018, the court denied the motion. The plaintiff appeals.

The Supreme Court erred in considering P & C Merrick’s contention, raised for the first time in reply, that it intended to move pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it rather than moving for summary judgment dismissing the complaint insofar as asserted against it. There is no indication in the record that the plaintiff had an opportunity to respond to P & C Merrick’s reply and to submit papers in surreply (see Gottlieb v Wynne, 159 AD3d 799, 801). Thus, the court should not have addressed the arguments raised by P & C Merrick for the first time in its reply papers (see St. John’s Univ. v Butler Rogers Baskett Architects, P.C., 105 AD3d 728, 728-729; cf. Hanscom v Goldman, 109AD3d 964, 965). As these new legal arguments were the basis for directing dismissal of the causes of action alleging specific performance and breach of contract, the plaintiff was prejudiced, and the Supreme Court erred in directing dismissal of those causes of action.

Courts will generally not consider arguments made by a movant for the first time on reply, unless those arguments directly respond to arguments the nonmovant made in opposition. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning what arguments may be included in a reply brief.

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