Claims for aiding and abetting fraud and conspiracy to commit fraud are also governed by CPLR 213 (8) (Tahair v Narkis, 216 A.D.3d 557, 559 [1st Dept 2023]). Breach of contract and unjust enrichment claims are subject to a six-year statute of limitations (see CPLR 213 [2]; Simon v FrancInvest, S.A., 192 A.D.3d 565, 567 [1st Dept 2021], appeal dismissed 37 N.Y.3d 1005 [2021]).
; Simon v. FrancInvest, S.A., 146 N.Y.S.3d 9, 12 (1st Dep't 2021) (“Contrary to defendants' assertion that the applicable statute of limitations is three years, the statute for unjust enrichment is six years
The motion court providently denied plaintiff’s motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. This Court has previously affirmed the dismissal of the claims which plaintiff seeks to reassert (see Simon v. FrancInvest, S.A., 192 A.D.3d 565, 566, 146 N.Y.S.3d 9 [1st Dept. 2021]; Simon v. FrancInvest, S.A., 178 A.D.3d 436, 115 N.Y.S.3d 7 [1st Dept. 2019]).
The motion court providently denied plaintiff's motion under CPLR 3025(b) and 5015(a)(3) to amend the third amended complaint to revive previously dismissed parties and claims and to assert new claims against new parties based on newly discovered evidence. This Court has previously affirmed the dismissal of the claims which plaintiff seeks to reassert (see Simon v FrancInvest, S.A., 192 A.D.3d 565, 566 [1st Dept 2021]; Simon v FrancInvest, S.A., 178 A.D.3d 436 [1st Dept 2019]).
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 [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 [1st Dept 2021], appeal dismissed 37 N.Y.3d 1005 [2021]). Defendant had the opportunity to assert, in his prior motion to dismiss, that the anti-SLAPP statute applied if his statements were true.
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)" (Ouyangv. 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"]; seealsoSimonv. FrancInvest, S.A, 192 A.D.3d 565, 566–567, 146 N.Y.S.3d 9 [1st Dept. 2021], appealdismissed 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.
Defendants’ arguments seeking dismissal of Sherman's unjust enrichment claims brought individually are raised for the first time in their reply papers, and will not be considered ( Simon v. FrancInvest, S.A., 192 A.D.3d 565, 569, 146 N.Y.S.3d 9 [1st Dept. 2021] ). Finally, although the doctrine of law of the case applies to the motion court's findings of fact, the doctrine applies only to the extent that those findings address the sufficiency of the pleadings and may not be used to limit discovery or to establish facts on summary judgment or at trial ( Friedman v. Connecticut Gen. Life Ins. Co. , 30 A.D.3d 349, 818 N.Y.S.2d 201 [1st Dept. 2006], affd as mod 9 N.Y.3d 105, 846 N.Y.S.2d 64, 877 N.E.2d 281 [2007] ; see alsoKorff v. Corbett, 155 A.D.3d 405, 410, 65 N.Y.S.3d 498 [1st Dept. 2017] ).
We decline to consider plaintiff's argument, which it raises for the first time in its reply brief. Plaintiff knew before the filing of its reply brief that that Birchall intended to participate in the appeal, and indeed, included Birchall's name as a respondent (see Simon v FrancInvest, S.A., 192 A.D.3d 565, 569 [1st Dept 2021], appeal dismissed, 37 N.Y.3d 1005 [2021]).
The portion of C3D's motion which seeks, for the first time in reply papers, dismissal of Cross-Claimants' cross-claims is likewise denied. An argument raised for the first time on reply should not be considered (Simon v Francinvest, S.A., 192 A.D.3d 565 [1st Dept 2021]). Accordingly, it is hereby, ORDERED that Defendant C3D Architecture PLLC's motion to dismiss Plaintiff Howard Barnowitz's Third-Amended Complaint is denied in its entirety; and it is further
A second motion to dismiss based on those grounds would be barred by the single motion rule. See CPLR 3211(f); Held v Kaufman, 91 N.Y.2d 425 (1998); Sampson v Roberts, 212 A.D.3d 545 (1st Dept. 2023); Simon v Francinvest, 192 A.D.3d 565 (1st Dept. 2021). Furthermore, an affirmative defense based on CPLR 3211(a)(7) may be dismissed where, as here, "all the other affirmative defenses are found to be legally insufficient."