Practice point: The defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action, that the action was time-barred, and that the complaint failed to state a cause of action. The Supreme Court denied those branches of that motion to dismiss the causes of action to recover damages for breach of fiduciary duty and gross negligence and, upon renewal, denied those branches of the motion which were to dismiss the fraud and unjust enrichment causes of action. The common-law negligence cause of action, which was asserted in the amended complaint as the fourth cause of action, was the only one of the five causes of action asserted in the amended complaint that was not substantially identical to a cause of action asserted in the original complaint.
The Appellate Division determined that those branches of the defendants' motion which were to dismiss the first, second, third, and fifth causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied.
Student note: CPLR 3211(e) provides, in pertinent part, that at any time before service
of a responsive pleading is required, a party may move to dismiss a
pleading "on one or more grounds set forth" in CPLR 3211(a), and that
"no more than one such motion shall be permitted." This single motion rule prohibits parties from making successive motions to
dismiss a pleading. The rule bars both repetitive
motions to dismiss a pleading pursuant CPLR 3211(a), as well as
subsequent motions to dismiss that pleading pursuant to CPLR 3211(a)
that are based on alternative grounds.
Case: Bailey v. Peerstate Equity Fund, L.P., NY Slip Op 01911 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: An objection to arbitration.
