On July 8, 2024, Justice Cohen of the New York County Commercial Division issued a decision in McGuigan v. Gendell, 2024 NY Slip Op. 32315(U), holding that a motion to dismiss claims in an amended complaint that were in the original complaint violate the single motion rule, explaining:
CPLR 3211(e) provides, in relevant part, that at any time before service of the responsive pleading is required, 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. CPLR 3211(e)’s single motion rule does not preclude a motion to dismiss an amended complaint so long as the challenged claims are not identical to any claims in the original complaint. To the extent Plaintiffs’ motion challenges the first through fourth Second Amended Counterclaims that survived Plaintiff’s first motion to dismiss, including the Counterclaim for defamation, the motion is barred by CPLR 3211(e)’s single motion rule because the counterclaims are identical.
(Internal quotations and citations omitted).