On July 11, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Gutnick v. Jacobson, 2024 NY Slip Op. 32481(U), holding that an amended complaint may not incorporate by reference allegations in the original complaint, explaining:
It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts. Further, all the allegations in the complaint are deemed true: and all reasonable inferences may be drawn in favor of the plaintiff. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR § 3211 motion to dismiss.
First, an amended complaint supersedes the original complaint rendering the original complaint no longer viable. Further, the amended complaint becomes the only complaint in the case. Therefore, the amended complaint cannot incorporate by reference the prior complaints since they are superseded they no longer contain any pertinent allegations. It may be the plaintiff sought to simply the amended pleading by referring to the original complaints for any facts or causes of action for which an amendment is not necessary. However; as noted, the original complaints are now rendered moot and no references can be made to them. Moreover, in 2012 CPLR § 3025(b) was amended and states that any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supp1emental pleading clearly showing the changes or additions to be made to the pleading, The practice commentaries accompanying the new rule state that this new provision does not prescribe exactly how the changes are to be shown, but any document marked with track changes, oi: some similar program, will likely suffice. Clarity should be the touchstone for any disputes on this front, and there are many ways in which the movant can achieve this legislative goal. While the pleading in this case was amended without the need to file a motion, the aims of track changes or redlines to provide an easy reference to such changes should have been provided. Therefore, the court must examine the amended complaint without regard to the original complaints. Such an examination reveals that there are no facts at all underlying any of the amended causes of action since all the underlying facts are contained in the prior complaints. Thus, the amended complaint cannot support any of the allegations.
(Internal quotations and citations omitted).