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
Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips
Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained
IN A CHILD VICTIMS ACT CASE AGAINST A TEACHER ALLEGED TO HAVE SEXUALLY ABUSED A STUDENT IN THE 60’S, THE BARE ALLEGATION IN THE COMPLAINT THAT THE EMPLOYER KNEW OR SHOULD HAVE KNOWN OF THE TEACHER’S PROPENSITY WAS NOT SUFFICIENT TO STATE A CAUSE OF ACTION; COMPLAINT DISMISSED (SECOND DEPT).
Plaintiff Struck by Sled—Village Immune from Liability Under General Obligations Law
THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT).
LACROSSE PLAYER JOGGING AROUND LACROSSE FIELD ASSUMED THE RISK OF BEING STRUCK BY A LACROSSE BALL.
THE DEFENDANTS’ PAPERS, WHICH INCLUDED PLAINTIFF’S AND DEFENDANT SANTIAGO’S DEPOSITION TESTIMONY, DEMONSTRATED THERE WERE QUESTIONS OF FACT ABOUT THE EXISTENCE OF ICE ON THE DRIVEWAY AND SANTIAGO’S NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

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...