On June 21, 2022, the First Department issued a decision in Favourite Ltd. v. Cico, 2022 NY Slip Op. 03987, holding that a plaintiff cannot amend a complaint that has been dismissed, explaining:
The initial question is whether Supreme Court had any discretion to grant plaintiffs leave to amend the complaint when this Court had already dismissed the second amended complaint. Usually, an application for leave to amend a pleading pursuant to CPLR 3025(b), is governed by a permissive standard. Indeed, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. In this case, this Court dismissed the second amended complaint because of a pleading deficiency that plaintiffs lacked standing and capacity to sue. Standing and capacity related dismissals are not on the merits, and the proposed third amended complaint purportedly cured the defect, except that here there was no existing complaint to amend. Our dismissal presented a unique procedural scenario that deprived Supreme Court of discretion to grant leave to amend the second amended complaint.
Given this Court’s outright dismissal of the claims based on a finding of lack of standing, there was no action pending when plaintiffs moved for leave to file the third amended complaint. Thus, the trial court lacked any discretion or authority to grant plaintiffs such leave, where we had properly dismissed the second amended complaint before plaintiffs filed the motion to amend. Our dismissal order was binding on the parties until vacated or set aside on further appeal. There was no further appeal of our decision. Hence, under the circumstances, plaintiffs’ only remedy was to commence a new action, which they failed to do.
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[I]t has long been settled that an order of the Appellate Division which affirms or, on reversal or modification, directs the dismissal of the complaint in an action, without leave to replead, is a final determination even if the dismissal is not based on the merits of the controversy. That is the approach that the Court of Appeals has consistently taken in sustaining the finality of dismissal orders not on the merits, including those where, like here, the plaintiff lacked legal capacity to sue. The order dismissing the complaint is held to be final because it completely disposes of the particular action, and the fact that it is not a decision on the merits is held not to detract from its finality.
Thus, . . . a judgment need not be entered for the case to be conclusively adjudicated. Where an Appellate Division remits to the trial court below solely for the specified purpose of entering a final order, decree or judgment pursuant to the Appellate Division’s direction, the order is held to be final, and the remission in such a case is considered one for purely ministerial action.
The Court of Appeals considers an Appellate Division dismissal order to be final — even where dismissal is not on the merits and even where no judgment has been entered. . . .
Ultimately, the finality of an Appellate Division’s dismissal order should be derived from clear rule of law and not depend on the vagaries of litigants or individual court clerks. Clear rule of law provides individuals with certainty, clarity, and predictability as to when a case is no longer active. Vesting court clerks with the ultimate wherewithal to decide when a case is no longer active and pending, after an order of the Appellate Division has dismissed the complaint, undermines the principal of finality which is essential to the orderly operation of our judicial system.
(Internal quotations and citations omitted).