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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: April 4, 2021

Single Motion Rule Bars Reassertion of Arguments in Motion to Dismiss Amended Complaint that were Made and Lost in Earlier Motion to Dismiss

On March 23, 2021, the First Department issued a decision in Simon v. FrancInvest, S.A., 2021 NY Slip Op. 01733, holding that the single motion rule bars reassertion of arguments in a motion to dismiss an amended complaint that were made and lost in an earlier motion to dismiss, explaining:

Preliminarily, plaintiff argues that both motions are barred by the single motion rule, because defendants-appellants brought an identical motion to dismiss his second amended complaint (SAC) in which he asserted identical causes of action, except for the newly asserted eighteenth cause of action in the TAC. CPLR 3211(e) provides in pertinent part: At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. While a second motion to dismiss may be permitted where the movant takes its cue from the court’s earlier decision to supply evidence that was found lacking on the first motion. Applying these principles, we hold that the arguments relating to the application of the statute of limitations are barred by the single motion rule. Defendants-appellants previously moved to dismiss the fourth and fifth causes of action in the SAC, which are the exact same fourth and fifth causes of action asserted in the TAC. This is a violation of the single motion rule. In any event, we conclude that plaintiff’s claims are not time-barred. While the parties disagree on when the closing of the sale of the surgical center took place (whether it was in 2010 or 2011), they do not dispute that the cause of action accrued on the date of the closing. Contrary to defendants’ assertion that the applicable statute of limitations is three years, the statute for unjust enrichment is six years. So are the statutes of limitations for quantum and a constructive trust. Thus, no matter which accrual date is applied, this action is timely because it was commenced in December 2014.

(Internal quotations and citations omitted).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are special procedural requirements, such as the one motion rule discussed above. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.

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