You are here: / / SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND...
, , ,

SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, over a two-justice dissent, determined Supreme Court did not have the discretion to grant leave to amend a complaint which had been dismissed by the First Department for lack of standing. After the appeal, plaintiff had cured the standing defect and Supreme Court allowed the amendment after the time-period to commence a new action (CPLR 205(a)) had expired:

This appeal raises the interesting question of whether a trial court has the discretion to grant a plaintiff leave to amend a complaint, pursuant to CPLR 3025 (b) … , after the Appellate Division has already ordered the complaint dismissed, with direction to enter judgment. We dismissed the complaint because plaintiffs, as non-managing members of a manager-managed Delaware limited liability company, lacked capacity … or standing to act on behalf of the Company when they obtained a Certificate of Revival of the Company before filing a second amended complaint. After plaintiffs purportedly remedied this deficiency of proper standing, they sought to revive the dismissed action by seeking leave to file a third amended complaint. As aforementioned, after we had already ordered the complaint dismissed, the motion court granted plaintiffs leave to file the third amended complaint. At the time plaintiffs sought leave to amend, the time to commence a new action had expired, including the six-month grace period provided by CPLR 205(a). … Under these circumstances, we find that the trial court lacked discretion to grant plaintiffs leave to amend a complaint that had already been dismissed by this Court. * * *

Given this Court’s outright dismissal of the claims based on a finding of lack of standing, there was no action pending when plaintiffs moved for leave to file the third amended complaint. Thus, the trial court lacked any discretion or authority to grant plaintiffs such leave, where we had properly dismissed the second amended complaint before plaintiffs filed the motion to amend … .Favourite Ltd. v Cico, 2022 NY Slip Op 03987, First Dept 6-21-22

Practice Point: Once the complaint was dismissed for lack of standing by the First Department, there was no pending action. Once the time for commencing a new action pursuant to CPLR 205(a) had expired plaintiff was out of luck. Supreme Court did not have the discretion to grant plaintiff’s motion to amend the complaint after it had been dismissed by the First Department.

 

You might also like
FACTS WHICH LED TO A PROCEEDING THAT WAS ULTIMATELY SEALED AND HEARSAY ARE ADMISSIBLE AT ADMINISTRATIVE HEARINGS, THE NEW YORK CITY HOUSING AUTHORITY DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS IN THIS DRUG ACTIVITY-DELINQUENT RENT ACTION (FIRST DEPT).
INSURER’S ACCIDENT INVESTIGATION REPORT IS PRIVILEGED AND NOT DISCOVERABLE (FIRST DEPT).
IN THE CONTEXT OF A CONTRACT IMPOSING CAPS FOR “NONWILLFUL” AND “WILLFUL” BREACHES, THE FACT THAT THE BREACH MAY HAVE BEEN DELIBERATE DID NOT RENDER THE BREACH “WILLFUL,” WHICH SHOULD BE INTERPRETED TO REFER TO “TRULY HARMFUL, CULPABLE CONDUCT;” SUPREME COURT REVERSED (FIRST DEPT).
DEFENSE COUNSEL TOLD THE COURT DURING THE PRE-TRIAL SUPPRESSION HEARING THAT DEFENDANT WAS NOT CONTESTING HIS CONSENT TO THE INTOXILYZER BREATH TEST; SUPREME COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO RAISE THAT SAME SUPPRESSION ISSUE DURING TRIAL; THE DISSENT DISAGREED (FIRST DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.
DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).
DEFENDANT’S STATEMENT PLAINTIFFS WERE FACING SUSPENSION OF THEIR LICENSE TO PRACTICE LAW WAS NOT PROTECTED AS FAIR AND TRUE LEGAL REPORTING PURSUANT TO CIVIL RIGHTS LAW 74; THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION PER SE, DISPARAGEMENT AND VIOLATIONS OF THE LANHAM ACT AND GENERAL BUSINESS LAW 349 (FIRST DEPT).
Subcontractor Who Is Not Vicariously Liable for the Acts or Omissions of Its Subcontractors Under Labor Law 200 May Be Vicariously Liable for those Acts or Omissions Under Labor Law 241 (6)

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 COMPLAINT WAS NEVER PROPERLY AMENDED TO ADD DEFENDANT AS A PARTY PURSUANT... DEFENDANT’S MOTION TO COMPEL PLANTIFF TO APPEAR FOR A PSYCHIATRIC EXAMINATION...