Defendant Cannot Move to Dismiss Claim That is Not Asserted Against It

On August 18, 2021, the Second Department issued a decision in Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC, 2021 NY Slip Op. 04702, holding that a defendant cannot move to dismiss a claim that is not asserted against it, explaining:

 The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) and (10) to dismiss the first cause of action. A defendant can only move to dismiss a cause of action where that cause of action is actually asserted against the moving defendant. Here, the first cause of action, which alleged, among other things, breach of contract, was only asserted against the defendant P & C Merrick Realty Co., LLC (hereinafter P & C Merrick), under the express language of paragraph 26 of the amended complaint. Thus, the defendants are unable to seek dismissal of the first cause of action. 

(Internal quotations and citations omitted).

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