You are here: / / THE DISMISSAL OF THE COMPLAINT DID NOT NULLIFY THE COUNTERCLAIMS (SECOND...

THE DISMISSAL OF THE COMPLAINT DID NOT NULLIFY THE COUNTERCLAIMS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the dismissal of the complaint did not nullify the counterclaims for which discovery had been demanded:

… Supreme Court should not have denied, as academic, the [plaintiffs’] cross-motions pursuant to CPLR 3211(a)(7) to dismiss the counterclaims and to compel the defendants to comply with certain discovery demands. “A cause of action contained in a counterclaim . . . shall be treated, as far as practicable, as if it were contained in a complaint” (CPLR 3019[d] …). “Thus, dismissal of the . . . complaint did not, in itself, extinguish the [defendants’] counterclaims,” which were independent of the causes of action asserted in the complaint … . Banschick v Johnson, 2023 NY Slip Op 06231, Second Dept 12-6-23

Practice Point: Here the dismissal of the complaint should not have been deemed to render the counterclaims academic. Causes of action in counterclaims should be treated as if they were in a complaint.

 

You might also like
Meaning of Imprecise and Confusing Term “Violent Felony Override” Explained
THE POLICE ACTED ILLEGALLY IN DIRECTING DEFENDANT TO GET OUT OF HIS VEHICLE; HOWEVER THE DEFENDANT’S SUBSEQUENT INDEPENDENT ACT OF RUNNING OVER THE POLICE OFFICER DISSIPATED THE ILLEGALITY OF THE POLICE CONDUCT; THEREFORE DEFENDANT’S MOTION TO SUPPRESS CERTAIN TESTIMONY ABOUT THE ENCOUNTER WITH THE POLICE WAS PROPERLY DENIED (SECOND DEPT).
DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT).
Criteria for Judgment as a Matter of Law and Finding a Verdict to be Against the Weight of the Evidence Explained
FEDERAL TAX RETURNS AND EMAILS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211 (A)(1); THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE EIGHT-AND-A-HALF-MONTH DELAY BETWEEN THE JUVENILE’S ARREST AND THE FILING OF THE JUVENILE DELINQUENCY PETITION DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW (SECOND DEPT).
EVIDENCE DEFENDANTS DID NOT CREATE THE WATER-ON-FLOOR CONDITION IN THIS SLIP AND FALL CASE WAS FIRST PRESENTED IN REPLY PAPERS; THEREFORE DEFENDANTS DID NOT MEET THEIR BURDEN ON THAT ISSUE; ALTHOUGH THERE WAS EVIDENCE THE AREA OF THE SLIP AND FALL WAS INSPECTED AT 7:00 AT THE START OF THE EVENT AND SOMETIME THEREAFTER, THERE WAS NO SPECIFIC EVIDENCE THE AREA WAS INSPECTED CLOSE IN TIME TO THE FALL AT 8:30, NEAR THE END OF THE EVENT (SECOND DEPT).
Condominium Owners Stated a Cause of Action Based Upon Third-Party-Beneficiary Status Re: a Contract Between the Village and an Engineer Hired to Inspect the Condominiums/The Contract Cause of Action Precluded the Professional Malpractice Cause of Action

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS... DEFENDANT IN THIS MURDER CASE MADE SERIOUS REQUESTS FOR NEW COUNSEL WHICH WERE...