Court Denies Motion To Dismiss Pursuant To Single Motion Rule

On July 8, 2024, Justice Joel M. Cohen denied plaintiffs’ motion to dismiss defendant’s counterclaims based on, inter alia, CPLR § 3211(e)’s single motion rule. McGuigan v. Gendell, Index No. 650294/2021, was a hotly contested dispute between former business partners. Defendants had filed original counterclaims, which plaintiffs moved to dismiss, and which motion the Court granted in part. Subsequently, defendants filed their Second Amended Counterclaims, and plaintiffs again moved to dismiss. In denying the motion, the Court explained:

CPLR 3211(e) provides, in relevant part, that “[a]t any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted.” “CPLR 3211(e)'s ‘single motion rule’” does not preclude a motion to dismiss an amended complaint so long as the challenged claims are not identical to any claims in the original complaint (O'Keeffe's Inc. v 400 Times Sq. Assoc., LLC, 2023 N.Y. Slip Op. 34494[U], 3 [N.Y. Sup Ct, New York County 2023] [Cohen, J.] quoting Barbarito v Zahavi, 107 AD3d 416, 420 [1st Dept 2013]). To the extent Plaintiffs’ motion challenges the first through fourth Second Amended Counterclaims that survived Plaintiff’s first motion to dismiss, including the Counterclaim for defamation, the motion is barred by CPLR 3211(e)’s single motion rule because the counterclaims are identical (TRB Acquisitions LLC v Yedid, 225 AD3d 508 [1st Dept 2024] [citations omitted]).

The attorneys at Schlam Stone & Dolan frequently litigate motions to dismiss. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.