You are here: / / OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION...
,

OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the omissions from the complaint against defendant insurance company were remedied by an affidavit submitted in opposition to the motion to dismiss:

A complaint must “be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions” that form the basis of the complaint and “the material elements of each cause of action” (CPLR 3013). The factual allegations of the complaint are accepted as true, and afforded “every possible favorable inference” … . “[A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one … . When such affidavits are considered, dismissal should not result unless “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

Here, the complaint standing alone failed to apprise defendant insurance companies of basic pertinent information to put them on notice of the claims against them, such as the patients treated and the insurance policies issued by defendant, under which plaintiff submitted claims for treatment rendered. However, in opposition to defendant insurance companies' motion to dismiss, plaintiff submitted an affidavit from its principal with an exhibit attached providing such information. Thus, the complaint and affidavit submitted in opposition sufficiently apprise defendant insurance companies of the “transactions, occurrences, or series of transactions” that form the basis of the complaint (CPLR 3013). High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027, 1st Dept 3-22-16

CIVIL PROCEDURE (OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)/COMPLAINTS (OMISSIONS FROM COMPLAINT SUPPLIED BY AFFIDAVIT IN OPPOSITION TO MOTION TO DISMISS, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)

You might also like
Dismissal of Complaint Was Too Severe a Sanction for Spoliation
ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).
RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).
HEARSAY INSUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) AND 241(6) ACTION; THE INDEMNIFICATION AND CONTRIBUTION CLAIM WAS PROPERLY DISMISSED BECAUSE PLAINTIFF DID NOT SUFFER GRAVE INJURY WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW 11 (FIRST DEPT).
IN A COMPREHENSIVE DECISION ANALYZING THE ELEMENTS OF PROOF IN A SLIP AND FALL CASE, INCLUDING EXPERT OPINION EVIDENCE, THE 1ST DEPARTMENT DETERMINED THE DEFENDANT STORE DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL KNOWLEDGE OF A PUDDLE OF WATER IN FRONT OF AN ICE MACHINE (FIRST DEPT).
COMPLAINT ALLEGATIONS OF A FRAUDULENT CONVEYANCE MADE “UPON INFORMATION AND BELIEF” DO NOT STATE A CAUSE OF ACTION (FIRST DEPT).
QUESTION OF FACT WHETHER OPTICAL CONFUSION OBSCURED A STEP, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.
REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS... PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE...