You are here: / / THE MAJORITY HELD SUPREME COURT PROPERLY ALLOWED PLAINTIFFS TO FILE AN...
, ,

THE MAJORITY HELD SUPREME COURT PROPERLY ALLOWED PLAINTIFFS TO FILE AN AMENDED COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED WITHOUT PREJUDICE BY THE APPELLATE DIVISION BECAUSE COUNTERCLAIMS WERE STILL BEFORE THE COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined that plaintiffs were properly allowed to amend their complaint, which had been dismissed without prejudice, because counterclaims were still before the court:

… [T]he Appellate Division dismissal of the second amended complaint due to lack of standing or capacity was without prejudice …. . The order contemplated that the company could “in theory, be revived,” but simply stated that [plaintiff] had done so improperly. Therefore, there is nothing in the Appellate Division’s order or opinion that would prevent plaintiffs from pursuing their claims after curing the standing or capacity issue. …

The question on appeal, then, is whether the Appellate Division’s decision required the plaintiffs to commence a separate action instead of seeking leave to file an amended complaint. Whatever the answer to that question might be in a case in which no action remained between the parties in Supreme Court, … here the action remained pending in Supreme Court because of the [defendants’] counterclaims. Therefore, Supreme Court retained control over the parties and continued to adjudicate claims related to the same transactions that formed the subject-matter of the complaint. For that reason, the Appellate Division order also did not render the case final for purposes of appealability, as no appeal to the Court of Appeals may be taken from an order which leaves claims pending in the action between the same parties … .

Because the original action remained pending in Supreme Court even after the complaint was dismissed, Supreme Court retained the power to grant leave to plaintiffs to file another amended complaint. Favourite Ltd. v Cico, 2024 NY Slip Op 01496, CtApp 3-19-24

Practice Point: Here the appellate court had dismissed the complaint without prejudice and the issue was whether plaintiffs could file an amended complaint, or whether plaintiffs had to start a new lawsuit. The Court of Appeals held Supreme Court retained the power to allow an amended complaint because counterclaims were still before the court.

 

You might also like
ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST.
TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING.
DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP).
HAPPY, AN ELEPHANT IN THE BRONX ZOO, IS NOT A “PERSON” ENTITLED TO THE PROTECTION OF A WRIT OF HABEAS CORPUS; THE PETITION SOUGHT HAPPY’S TRANSFER TO AN ELEPHANT SANCTUARY; TWO DISSENTS (CT APP).
Waiver of Appeal Encompasses Sentencing Court’s Denial of Youthful Offender Status
THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).
COUNTY IMMUNE FROM SUIT BY STUDENT ASSAULTED BY A WORKER, A LEVEL THREE SEX OFFENDER, WHO WAS REFERRED BY THE COUNTY AS PART OF A WELFARE TO WORK PROGRAM.
MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP).

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 NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE... JUDICIARY LAW 487 CREATES A PRIVATE RIGHT OF ACTION AGAINST AN ATTORNEY FOR...