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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 17, 2021

Party May Amend Complaint as of Right While Motion to Dismiss is Pending

On May 20, 2021, the First Department issued a decision in Roam Capital, Inc. v. Asia Alternatives Mgt. LLC, 2021 NY Slip Op. 03269, holding that a party may amend a complaint as of right while a motion to dismiss is pending, explaining:

We find that the motion court improvidently exercised its discretion by denying leave to amend. A party may amend his pleading once without leave of court at any time before the period for responding to it expires. Since a motion to dismiss extends the defendant’s time to answer the complaint until ten days after service of notice of entry of the order deciding the motion, and since the court had not yet even decided defendant’s CPLR 3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR 3025(b); instead, it could have amended as of right pursuant to CPLR 3025(a). We have considered defendant’s contentions that plaintiff waived its right to amend and may not argue for the first time on appeal that it could amend as of right and find them unavailing.

(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 question of whether/when a complaint can be amended as of right it tactically important. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where the plaintiff has amended its complaint while a motion to dismiss is pending.

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