Preview
FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM INDEX NO. E2021008190
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3025117
Book Page CIVIL
Return To: No. Pages: 6
ELLIOT DOLBY-SHIELDS
192 Lexington Avenue, Suite 802 Instrument: MEMO OF LAW
New York, NY 10016
Control #: 202203221579
Index #: E2021008190
Date: 03/22/2022
ADAMIDES, KATHERINE Time: 9:59:51 PM
ADAMS, TYRUS ASA
ALLMAN, JOE
BEADLE, ALAN
BRALEY, KENNETH
The City of Rochester
Baxter, Todd
State Fee Index Number $165.00
County Fee Index Number $26.00
Total Fees Paid: $191.00 Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE
ALLMAN, ALAN BEADLE, KENNETH BRALEY,
JEREMY DOBNER, MATTHEW GOULD, BRIAN
GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND, INDEX NO: E2021008190
LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN
MOORE, HENRY O’BRIEN, PAMELA OWENS,
RASHIDA PRICE, ZACHARY ROBERTS, CORY
ROBINSON, CRESCENZO SCIPIONE, MICHAEL
SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS,
RHYS WHITMORE,
Plaintiffs,
-against-
THE CITY OF ROCHESTER, a municipal entity, “JOHN
DOE POLICE OFFICERS 1-200” (names and number of
whom are unknown at present), TODD BAXTER,
“RICHARD ROE SHERIFF’S DEPUTIES 1-200” (names
and number of whom are unknown at present), and other
unidentified members of the Rochester Police Department and
Monroe County Sheriff’s Office,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION
TO THE DEFENDANTS’ PARTIAL MOTIONS TO DISMISS
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FACTS
On March 22, 2022, Plaintiffs filed and served the First Amended Complaint. Thus, the
Defendants’ motions to dismiss the complaint pursuant to CPLR 3211 are moot and must be
denied.
ARGUMENTS
I. Plaintiffs Properly Filed their Amended Complaint As of Right Pursuant to CPLR
3025(a) and Were Not Required To File A Motion to Amend Pursuant to CPLR
3025(b).
The CPLR is clear that “[a] party may amend his pleading once without leave of court ...
at any time before the period for responding to it expires, or within twenty days after service of a
pleading responding to it.” (CPLR 3025(a) [emphasis added]). Here, the CITY filed a pre-answer
motion to dismiss Plaintiffs’ original Complaint pursuant to CPLR 3211(a), which “extends the
time to serve the [responsive] pleading until ten days after service of notice of entry of an order
on the motion.”
Black letter New York law provides the Plaintiffs with a unilateral right to amend their
complaint once before Defendants file a responsive pleading. (D’Amico v. Correctional Medical
Care, Inc., 120 A.D.3d 956, 957 [4th Dep’t 2014] [“Initially, with respect to the CMC
defendants, we note that plaintiff properly amended her complaint as of right by filing the
verified amended complaint after the CMC defendants moved to dismiss the original
complaint”]; Perez v. Wegman Cos., 162 AD2d 959 [4th Dept. 1990] [“As long as [a]
defendant's motion to dismiss [is] pending, [a] plaintiff could amend her complaint as a matter or
right” pursuant to CPLR 3035(a)])
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As the First Department recently explained in Roam Capital, Inc. v. Asia Alternatives
Management LLC, 194 A.D.3d 585 [1st Dept. 2021],
“Since a motion to dismiss extends the defendant’s time to answer
the complaint ‘until ten days after service of notice of entry of the
order’ deciding the motion (CPLR 3211[f]), and since the court had
not yet even decided defendant’s CPLR 3211 motion at the time
plaintiff moved to amend its complaint, plaintiff did not need to
move pursuant to CPLR 3025(b); instead, it could have amended as
of right pursuant to CPLR 3025(a).”
(Id. at 585)
Importantly. CPLR 3025(a) does not condition amendment on any factor other than the
absence of a responsive pleading. (See Plaza PH2001 LLC v. Plaza Residential Owner LP. 98
A.D.3d 89. 98. 947 N.Y.S.2d 498. 505 [1st Dep't 2012] [trial court could not dismiss complaint
amended under CPLR 3025(a) for being “procedurally and substantively improper” because
plaintiff had right to amend).
II. The Amended Complaint Replaced The Original Complaint As The Operative
Complaint In The Case, And Thus The Motions To Dismiss Are Moot.
Generally, once an amended pleading has been served in an action, “it supersede[s] the
original complaint and [becomes] the only complaint in the case.” (Halmar Distributors, Inc. v.
Approved Manufacturing Corp., 49 A.D.2d 841, 841, 373 N.Y.S.2d 599 [1st
Dept.1975] citing Branower & Son v. Waldes, 173 App.Div. 676, 160 N.Y.S. 168 [1st Dept
1916]). Thereafter, “the action ... must proceed as though the original pleading had never been
served.” (Id.)
Here, the Amended Complaint replaced the original Complaint as the operative complaint
in the case, and thus the motions to dismiss by the City and the County defendants are moot.
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(Lipary v Posner, 409 N.Y.S.2d 363, 364 [Sup Ct, Monroe County, Sep. 25, 1978]). As the
Court explained in Lipary,
“By virtue of their motions against the complaint, defendants’ times
to answer the complaint were automatically extended until after the
motions were decided. CPLR 3211(f). Plaintiff was therefore free to
amend the complaint as of course, as he has done. CPLR 3025(a).
The amended complaint having been lawfully served, it superseded
the original complaint and became the only complaint in the case,
and the action must proceed as though the original pleading had
never been served. Halmar Distributors, Inc. v. Approved Mfg.
Corp. (1st Dept.), 49 A.D.2d 841, 373 N.Y.S.2d 599. The motions
of all defendants addressed to the original complaint were thus
rendered moot and must therefore be denied. See Green v. Kings
Mercantile Co., Inc., N.Y.L.J., 11-22-63, p. 15, col. 2.”
(Id.)
Some courts have held that the original motion to dismiss should only be deemed
“abated” or “mooted” where the “amendments make a significant change in the nature of the
action,” and that “the better rule is one which allows the moving party the option of withdrawing
its motion or pressing it with regard to the amended pleading.” (Sholom & Zuckerbrot Realty
Corp. v Coldwell Banker Commercial Group, 525 N.Y.S.2d 541, 542, 1988 WL 17942 [Sup Ct,
Queens Co., Feb. 17, 1988])
Here, the Amended Complaint made significant changes to the Original Complaint by
adding claims under the New York Right to Monitor Act, N.Y. Civ. Rights Law § 79-p(3). Thus,
the City and Defendants motions to dismiss should be deemed mooted.
CONCLUSION
For all the foregoing reasons, the City and the County Defendants’ motions to dismiss the
original complaint pursuant to CPLR 3211 should be denied as moot.
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FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022
Dated: March 22, 2022 Respectfully Submitted,
New York, New York
BY: ~//s//~
Elliot Dolby Shields
Roth & Roth, LLP
Co-Counsel for Plaintiffs
192 Lexington Avenue, Suite 802
New York, New York 10016
Phone: (212) 425 1020
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Preview
FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM INDEX NO. E2021008190 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3025117 Book Page CIVIL Return To: No. Pages: 6 ELLIOT DOLBY-SHIELDS 192 Lexington Avenue, Suite 802 Instrument: MEMO OF LAW New York, NY 10016 Control #: 202203221579 Index #: E2021008190 Date: 03/22/2022 ADAMIDES, KATHERINE Time: 9:59:51 PM ADAMS, TYRUS ASA ALLMAN, JOE BEADLE, ALAN BRALEY, KENNETH The City of Rochester Baxter, Todd State Fee Index Number $165.00 County Fee Index Number $26.00 Total Fees Paid: $191.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 6 202203221579 03/22/2022 09:59:51 PM CIVIL 202203221579 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK KATHERINE ADAMIDES, TYRUS ASA ADAMS, JOE ALLMAN, ALAN BEADLE, KENNETH BRALEY, JEREMY DOBNER, MATTHEW GOULD, BRIAN GRAVELLE, ARSENIY GUTNIK, DAMIAN HAMMOND, INDEX NO: E2021008190 LOUIS “ELLE” HERMAN, JORDAN HUGHES, KWANN MOORE, HENRY O’BRIEN, PAMELA OWENS, RASHIDA PRICE, ZACHARY ROBERTS, CORY ROBINSON, CRESCENZO SCIPIONE, MICHAEL SPORTIELLO, JAMES STAIR, DAVE SUTLIFF-ATIAS, RHYS WHITMORE, Plaintiffs, -against- THE CITY OF ROCHESTER, a municipal entity, “JOHN DOE POLICE OFFICERS 1-200” (names and number of whom are unknown at present), TODD BAXTER, “RICHARD ROE SHERIFF’S DEPUTIES 1-200” (names and number of whom are unknown at present), and other unidentified members of the Rochester Police Department and Monroe County Sheriff’s Office, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO THE DEFENDANTS’ PARTIAL MOTIONS TO DISMISS 2 of 6 202203221579 03/22/2022 09:59:51 PM CIVIL 202203221579 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 FACTS On March 22, 2022, Plaintiffs filed and served the First Amended Complaint. Thus, the Defendants’ motions to dismiss the complaint pursuant to CPLR 3211 are moot and must be denied. ARGUMENTS I. Plaintiffs Properly Filed their Amended Complaint As of Right Pursuant to CPLR 3025(a) and Were Not Required To File A Motion to Amend Pursuant to CPLR 3025(b). The CPLR is clear that “[a] party may amend his pleading once without leave of court ... at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.” (CPLR 3025(a) [emphasis added]). Here, the CITY filed a pre-answer motion to dismiss Plaintiffs’ original Complaint pursuant to CPLR 3211(a), which “extends the time to serve the [responsive] pleading until ten days after service of notice of entry of an order on the motion.” Black letter New York law provides the Plaintiffs with a unilateral right to amend their complaint once before Defendants file a responsive pleading. (D’Amico v. Correctional Medical Care, Inc., 120 A.D.3d 956, 957 [4th Dep’t 2014] [“Initially, with respect to the CMC defendants, we note that plaintiff properly amended her complaint as of right by filing the verified amended complaint after the CMC defendants moved to dismiss the original complaint”]; Perez v. Wegman Cos., 162 AD2d 959 [4th Dept. 1990] [“As long as [a] defendant's motion to dismiss [is] pending, [a] plaintiff could amend her complaint as a matter or right” pursuant to CPLR 3035(a)]) 1 3 of 6 202203221579 03/22/2022 09:59:51 PM CIVIL 202203221579 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 As the First Department recently explained in Roam Capital, Inc. v. Asia Alternatives Management LLC, 194 A.D.3d 585 [1st Dept. 2021], “Since a motion to dismiss extends the defendant’s time to answer the complaint ‘until ten days after service of notice of entry of the order’ deciding the motion (CPLR 3211[f]), and since the court had not yet even decided defendant’s CPLR 3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR 3025(b); instead, it could have amended as of right pursuant to CPLR 3025(a).” (Id. at 585) Importantly. CPLR 3025(a) does not condition amendment on any factor other than the absence of a responsive pleading. (See Plaza PH2001 LLC v. Plaza Residential Owner LP. 98 A.D.3d 89. 98. 947 N.Y.S.2d 498. 505 [1st Dep't 2012] [trial court could not dismiss complaint amended under CPLR 3025(a) for being “procedurally and substantively improper” because plaintiff had right to amend). II. The Amended Complaint Replaced The Original Complaint As The Operative Complaint In The Case, And Thus The Motions To Dismiss Are Moot. Generally, once an amended pleading has been served in an action, “it supersede[s] the original complaint and [becomes] the only complaint in the case.” (Halmar Distributors, Inc. v. Approved Manufacturing Corp., 49 A.D.2d 841, 841, 373 N.Y.S.2d 599 [1st Dept.1975] citing Branower & Son v. Waldes, 173 App.Div. 676, 160 N.Y.S. 168 [1st Dept 1916]). Thereafter, “the action ... must proceed as though the original pleading had never been served.” (Id.) Here, the Amended Complaint replaced the original Complaint as the operative complaint in the case, and thus the motions to dismiss by the City and the County defendants are moot. 2 4 of 6 202203221579 03/22/2022 09:59:51 PM CIVIL 202203221579 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 (Lipary v Posner, 409 N.Y.S.2d 363, 364 [Sup Ct, Monroe County, Sep. 25, 1978]). As the Court explained in Lipary, “By virtue of their motions against the complaint, defendants’ times to answer the complaint were automatically extended until after the motions were decided. CPLR 3211(f). Plaintiff was therefore free to amend the complaint as of course, as he has done. CPLR 3025(a). The amended complaint having been lawfully served, it superseded the original complaint and became the only complaint in the case, and the action must proceed as though the original pleading had never been served. Halmar Distributors, Inc. v. Approved Mfg. Corp. (1st Dept.), 49 A.D.2d 841, 373 N.Y.S.2d 599. The motions of all defendants addressed to the original complaint were thus rendered moot and must therefore be denied. See Green v. Kings Mercantile Co., Inc., N.Y.L.J., 11-22-63, p. 15, col. 2.” (Id.) Some courts have held that the original motion to dismiss should only be deemed “abated” or “mooted” where the “amendments make a significant change in the nature of the action,” and that “the better rule is one which allows the moving party the option of withdrawing its motion or pressing it with regard to the amended pleading.” (Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 525 N.Y.S.2d 541, 542, 1988 WL 17942 [Sup Ct, Queens Co., Feb. 17, 1988]) Here, the Amended Complaint made significant changes to the Original Complaint by adding claims under the New York Right to Monitor Act, N.Y. Civ. Rights Law § 79-p(3). Thus, the City and Defendants motions to dismiss should be deemed mooted. CONCLUSION For all the foregoing reasons, the City and the County Defendants’ motions to dismiss the original complaint pursuant to CPLR 3211 should be denied as moot. 3 5 of 6 202203221579 03/22/2022 09:59:51 PM CIVIL 202203221579 INDEX NO. E2021008190 FILED: MONROE COUNTY CLERK 03/22/2022 09:59 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/22/2022 Dated: March 22, 2022 Respectfully Submitted, New York, New York BY: ~//s//~ Elliot Dolby Shields Roth & Roth, LLP Co-Counsel for Plaintiffs 192 Lexington Avenue, Suite 802 New York, New York 10016 Phone: (212) 425 1020 4 6 of 6