Opinion
656198/2016
12-23-2020
O'SHEA PARTNERS LLP, Plaintiff, v. Robert GLADSTONE, Madison Equities, Defendant.
Plaintiff: O'Shea Partners LLP, 521 Fifth Avenue, 25th Floor, New York, NY 10175, By: Michael E. Petrella, Esq. Defendants: Akabas & Sproule Esqs., 488 Madison Avenue, Suite 1120, New York, NY 10022, By: David Edgar Bamberger, Esq.
Plaintiff: O'Shea Partners LLP, 521 Fifth Avenue, 25th Floor, New York, NY 10175, By: Michael E. Petrella, Esq.
Defendants: Akabas & Sproule Esqs., 488 Madison Avenue, Suite 1120, New York, NY 10022, By: David Edgar Bamberger, Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 162, 163, 164, 165, 166, 167, 168 were read on this motion to DISMISS.
In this action, plaintiff law firm O'Shea Partners LLP (the O'Shea firm) seeks to recover approximately $300,000 in legal fees for services rendered to defendants Robert Gladstone and Madison Equities. The O'Shea firm now moves, pursuant to CPLR 3211[a][1] and 3211[a][7], to dismiss defendants' third counterclaim and their eleventh affirmative defense both of which challenge the fees as excessive and/or fraudulent.
This action was commenced by way of summons and complaint in November 2016. Following discovery, defendants moved in December 2019, pursuant to CPLR 3025(b), to amend the answer to include the counterclaim and affirmative defense at issue on this motion. In response, plaintiff opposed defendants' motion and filed a "Notice of Contingent Cross-Motion" seeking, in the event amendment was granted, dismissal of the new portions of the pleading pursuant to CPLR 3211(a)(1) and (7).
By Decision and Order dated February 26, 2020 ( O'Shea Partners v. Gladstone et ano , 2020 WL 1033759 [Sup Ct, NY Co 2020] ), this court granted defendants' motion to amend. The court held that "[p]laintiff has failed to provide admissible evidence supporting its arguments of insufficiency [of the amended pleading], but, rather, has offered nothing more than conclusory allegations" ( O'Shea , 2020 WL 1033759 *1 ). The court further held that it was "unaware of any basis in law or fact" authorizing plaintiff to make a contingent cross-motion (id. ). Defendants filed their amended answer on February 27, 2020 and plaintiff made the instant motion to dismiss on March 18, 2020.
In opposing the motion, defendants argue that the motion violates the single motion rule of CPLR 3211(e). Plaintiff counters that this motion is not truly a second motion because the court did not consider its prior contingent motion. The parties also debate whether an amended pleading which satisfies the required showing of sufficiency under CPLR 3025(b) is automatically immunized from an immediate, subsequent motion to dismiss.
The motion is denied. The single motion rule prohibits a party from bringing repetitive motions to dismiss under CPLR 3211(a) after being given the full opportunity to raise the same arguments ( Landes v. Provident Realty Partners II, IP , 137 AD3d 694 [1st Dept 2016] ). The rule is designed to prevent delay before answer (see Held v. Kaufman , 91 NY2d 425, 430 [1998] ), to protect the pleader from being harassed by repeated CPLR 3211(a) motions ( Nassau Roofing & Sheet Metal Co. v. Celotex Corp. , 74 AD2d 679, 680 [3d Dept 1980] ), and to conserve judicial resources ( Oakley v. City of Nassau , 127 AD3d 946, 947 [2d Dept 2015] ). The rule does not apply, however, where the motion to dismiss is directed to new claims interposed in an amended complaint ( Kocourek v. Booz Allen Hamilton Inc. , 114 AD3d 567, 569 [1st Dept 2014] ; Barbarito v. Zahavi , 107 AD3d 416, 420 [1st Dept 2013] ).
Technically speaking, plaintiff's motion may not have violated the single motion rule because plaintiff's so-called "contingent cross-motion" was interposed before the official filing of the amended answer setting forth the additional claims. Nevertheless, plaintiff had a full and fair opportunity to test the new pleadings, insofar as "a motion for leave to amend a pleading must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment" ( Boaz Bag Bag v. Alcobi , 129 AD3d 649, 649 [1st Dept 2015], quoting Non—Linear Trading Co. v. Braddis Assoc. , 243 AD2d 107, 116 [1st Dept 1998) ]. Like the single motion rule, the examination of a proposed amendment under CPLR 3025(b) is intended to conserve judicial resources ( Ancrum v. St. Barnabas Hosp. , 301 AD2d 474, 475 [1st Dept 2003] ).
The current motion repeats the same arguments set forth in plaintiff's opposing brief on the prior motion (see NYSCEF Doc. No. 67, Points II and III[A] ). Furthermore, it relies on nearly all of the same documents (compare Petrella Aff. [NYSCEF Doc. No. 147], Exhs. 1-7, 10-12 with O'Shea Aff. [NYSCEF Doc. No. 68] Exhs.5, 34-40, 43-45). Here, the court cannot ignore that plaintiff previously burdened the record with its "contingent motion." Nor can the court ignore that it has already fully heard before in this action the very arguments plaintiff now presents on this motion. Although there may be some circumstances under which an amended pleading might be subject to dismissal despite surviving scrutiny under CPLR 3025(b), this is not such a case.
Finally, defendants' demand for sanctions, which was not made by way of a formal motion, is denied in the discretion of the court.
Accordingly, it is
ORDERED that plaintiff's motion to dismiss defendants' third counterclaim and eleventh affirmative defense denied, and it is further
ORDERED that the plaintiff shall serve a reply to the amended answer and counterclaims within 20 days from the date of said service.
This constitutes the decision and order of the Court.