Elliman v. Elliman

Appellate Division of the Supreme Court of New York

Elliman v. Elliman

259 A.D.2d 341, 687 N.Y.S.2d 31, 1999 N.Y. App. Div. LEXIS 2758

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 1999

StatusPublished

Cited by1 cases

This text of 259 A.D.2d 341 (Elliman v. Elliman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elliman v. Elliman, 259 A.D.2d 341, 687 N.Y.S.2d 31, 1999 N.Y. App. Div. LEXIS 2758 (N.Y. Ct. App. 1999).

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Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 23, 1997, which, insofar as appealed from, granted plaintiffs’ motion for leave to replead as against defendants-appellants, unanimously affirmed, without costs.

Leave to replead was properly granted upon an affidavit by a person with knowledge of facts supporting a proposed amended complaint that cured the pleading deficiencies of the original complaint (CPLR 3211 [e]). Such relief is not necessarily precluded by plaintiffs’ failure to have requested it in their opposition to defendants’ prior motion to dismiss, as required by CPLR 3211 (e); such noncompliance may be excused as a matter of discretion (see, Sanders v Schiffer, 39 NY2d 727; Rapid Rehabilitation Corp. v City of New York, 63 AD2d 901; cf., Bardere v Zafir, 63 NY2d 850). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.

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Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 23, 1997, which, insofar as appealed from, granted plaintiffs’ motion for leave to replead as against defendants-appellants, unanimously affirmed, without costs.

Leave to replead was properly granted upon an affidavit by a person with knowledge of facts supporting a proposed amended complaint that cured the pleading deficiencies of the original complaint (CPLR 3211 [e]). Such relief is not necessarily precluded by plaintiffs’ failure to have requested it in their opposition to defendants’ prior motion to dismiss, as required by CPLR 3211 (e); such noncompliance may be excused as a matter of discretion (see, Sanders v Schiffer, 39 NY2d 727; Rapid Rehabilitation Corp. v City of New York, 63 AD2d 901; cf., Bardere v Zafir, 63 NY2d 850). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.

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Bluebook (online)

259 A.D.2d 341, 687 N.Y.S.2d 31, 1999 N.Y. App. Div. LEXIS 2758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliman-v-elliman-nyappdiv-1999.

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