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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 11, 2020

Party May Not Move to Amend a Pleading That Already Has Been Dismissed

On October 2, 2020, the Fourth Department issued a decision in Christiana Trust v. Rice, 2020 NY Slip Op. 05315, holding that a party may not move to amend a pleading that already has been dismissed, explaining:

We agree with plaintiff that Supreme Court erred in granting defendant’s cross motion for leave to amend the answer. CPLR 3025 (b) provides, in relevant part, that a party may amend his or her pleading at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just. Where a complaint or answer has already been stricken or dismissed, however, a court cannot permit amendment of the pleading because there is no pleading before the court to be amended. Here, there is no dispute that, at the time of defendant’s cross motion, the answer had already been stricken pursuant to a prior order of the court. We therefore modify the October order accordingly.

(Internal quotations and citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding whether it is too late to amend your claims or answer.

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