Opinion
03-19-2024
TRB ACQUISITIONS LLC, et al., Plaintiffs–Appellants, v. Jack YEDID, Defendant-Respondent.
Hogan Lovells US LLP, New York (James L. Bernard of counsel), for appellants. Benesch, Friedlander, Coplan & Aronoff LLP, New York (Edward C. Wipper of counsel), for respondent.
Hogan Lovells US LLP, New York (James L. Bernard of counsel), for appellants.
Benesch, Friedlander, Coplan & Aronoff LLP, New York (Edward C. Wipper of counsel), for respondent.
Singh, J.P., Gonzalez, Scarpulla, Higgitt, Rosado, JJ.
Order, Supreme Court, New York County (Jennifer Schecter, J.), entered on or about September 5, 2023, which, after a hearing, granted defendant’s motion to dismiss the breach of contract complaint and directed the Clerk to enter judgment dismissing the complaint, unanimously reversed, on the law, with costs, the motion denied, and the complaint reinstated.
[1, 2] Supreme Court should have denied the motion to dismiss as violative of the single motion rule, "which permits a party to move only once upon one or more of the grounds enumerated under CPLR 3211(a)" (Ouyang v. Jeng, 260 A.D.2d 618, 619, 689 N.Y.S.2d 175 [2d Dept. 1999]; see CPLR 3211[e] ["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"]; see also Simon v. FrancInvest, S.A, 192 A.D.3d 565, 566–567, 146 N.Y.S.3d 9 [1st Dept. 2021], appeal dismissed 37 N.Y.3d 1005, 152 N.Y.S.3d 673, 174 N.E.3d 698 [2021]). Defendant had the opportunity to assert, in his prior motion to dismiss, that the anti-SLAPP statute applied if his statements were true. Thus, Supreme Court should have denied the motion (see Landes v. Provident Realty Partners II, L.P., 137 A.D.3d 694, 27 N.Y.S.3d 853 [1st Dept. 2016]; compare Ultramar Energy v. Chase Manhattan Bank, 191 A.D.2d 86, 88, 599 N.Y.S.2d 816 [1st Dept. 1993] [finding single motion rule does not apply because second CPLR 3211(a) motion "is neither repetitive nor based on an alternative ground"]).
Because we find that Supreme Court should have denied defendant’s motion under the single motion rule, we need not reach plaintiffs’ remaining arguments.