Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty

Appellate Division of the Supreme Court of New York

Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty

71 A.D.3d 533, 895 N.Y.S.2d 824

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

DecidedMarch 18, 2010

StatusPublished

Cited by3 cases

This text of 71 A.D.3d 533 (Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty) 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.

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Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty, 71 A.D.3d 533, 895 N.Y.S.2d 824 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 23, 2009, which denied defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiffs failure to plead at the outset that the dispute over counsel fees and disbursements was not covered by the Fee Dispute Resolution Program (see 22 NYCRR 137.6 [b] [2]) is not a jurisdictional defect precluding it from serving an amended complaint (see Kerner & Kerner v Dunham, 46 AD3d 372 [2007]). Therefore, plaintiff had the right to amend its complaint during the pendency of defendants’ motion to dismiss (CPLR 3025 [a]; see Johnson v Spence, 286 AD2d 481, 483 [2001]). It is well settled that an amended complaint supersedes the original complaint, thus rendering without legal effect the defective earlier pleading (see Chalasani v Neuman, 64 NY2d 879 [1985]; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2004]). Concur — Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam and Román, JJ.

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Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 23, 2009, which denied defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiffs failure to plead at the outset that the dispute over counsel fees and disbursements was not covered by the Fee Dispute Resolution Program (see 22 NYCRR 137.6 [b] [2]) is not a jurisdictional defect precluding it from serving an amended complaint (see Kerner & Kerner v Dunham, 46 AD3d 372 [2007]). Therefore, plaintiff had the right to amend its complaint during the pendency of defendants’ motion to dismiss (CPLR 3025 [a]; see Johnson v Spence, 286 AD2d 481, 483 [2001]). It is well settled that an amended complaint supersedes the original complaint, thus rendering without legal effect the defective earlier pleading (see Chalasani v Neuman, 64 NY2d 879 [1985]; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2004]). Concur — Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam and Román, JJ.

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Bluebook (online)

71 A.D.3d 533, 895 N.Y.S.2d 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nimkoff-rosenfeld-schechter-llp-v-oflaherty-nyappdiv-2010.

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