Can a plaintiff file an amended complaint after a MTD has been ruled on but before the defendant files answer?
4 attorney answers
A CPLR 3211 Motion to Dismiss is not a "responsive pleading". It is a request for the Court to make a ruling on the legal sufficiency of the complaint. You have 20 days after the defendant files a responsive pleading to amend the complaint as a matter of right. Wait until the defendant files an answer; then amend your complaint if you feel it is strategically valuable. Here is the rule below which should be read in conjunction with Mr. Smollens' very helpful citation.
The NY CPLR is complicated. You should consider retaining experienced litigation counsel.
CPLR 3025. Amended and supplemental pleadings. (a) Amendments without
leave. A party may amend his pleading once without leave of court within
twenty days after its service, or at any time before the period for
responding to it expires, or within twenty days after service of a
pleading responding to it.
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Dear New York City (Manhattan) Plaintiff:
Does this match your procedural history?
"As an initial matter, Justice Demarest noted that the plaintiff need not have moved for leave to amend his complaint, since, under CPLR 3025(a), he was still entitled to an amendment as of right. See CPLR 3025(a) (“A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.”). Here, the defendant did not file a responsive “pleading,” but rather filed a CPLR 3211 motion to dismiss. Thus, the plaintiff was still free to amend the complaint once without leave of court."
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You are overlooking that defendant, instead of answering, moved to dismiss, so the "free amendment" period has closed. You need to seek permission.
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