FKB recently obtained dismissal of a counterclaim complaint alleging violations of Judiciary Law §487, negligent misrepresentation and various intentional torts. Click here to view

In response, the Counterclaim Plaintiffs moved under CPLR 3025(a) for leave to amend their counterclaim complaint against FKB’s client, asserting a new claim sounding in fraud. In opposition, FKB argued that: (1) the proposed amended counterclaim complaint was nothing more than an attempt to re-plead the same counterclaims that were previously dismissed by the court; and (2) the new claim for fraud was deficiently pled and failed to allege the element of scienter with sufficient particularity.

Following oral argument, in a Decision and Order dated June 2, 2015, Justice Manuel J. Mendez agreed with the legal arguments set forth in FKB’s opposition papers and denied the motion in its entirety.

Motions for leave to amend a pleading under CPLR 3025 are generally liberally granted, which would have necessitated the filing of a new CPLR 3211 motion to dismiss by FKB. See Anoun v. City of New York, 85 A.D.3d 694 (1st Dept. 2011). This result saved FKB’s client the time and expense associated with additional dispositive motion practice.

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz or Stefanie A. Singer.