First American Title Insurance v. Seizin Abstract Corp.

204 A.D.2d 681, 614 N.Y.S.2d 241, 1994 N.Y. App. Div. LEXIS 5744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1994
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Mario Celia appeals from an order of the Supreme Court, Nassau County (Saladino, J.), dated July 13, 1992, which denied his motion to dismiss the eighth cause of action in the amended complaint insofar as it is asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the eighth cause of action in the amended complaint is dismissed insofar as it is asserted against the appellant.

The plaintiffs were served with the answer of Jerald DeSocio, the last answering defendant, on November 26, 1991. DeSocio stipulated to extend the time within which the plaintiffs could amend their complaint until January 16, 1992. The appellant was not a party to this stipulation.

A party may amend his pleading once without leave of court within 20 days after service of a pleading responding to it (see, CPLR 3025 [a]). On January 15, 1992, after the expiration of the 20-day period, the plaintiffs served an amended complaint asserting an additional cause of action against the appellant. In order for a party to amend his or her pleading after the expiration of the 20-day period without leave of court, the stipulation of all parties is necessary (see, CPLR 3025 [b]). Because the appellant never stipulated to grant additional time for the plaintiffs to amend their complaint, the appellant’s motion to dismiss the eighth cause of action in the amended complaint insofar as it is asserted against him should have been granted. In any event, we note that the eighth cause of action failed to state a cause of action against the appellant (see, Laterza v American Broadcasting Co., 581 F Supp 408). Bracken, J. P., Lawrence, Copertino and Florio, JJ., concur.