Rochester Poster Advertising Co. v. Town of Penfield

Appellate Division of the Supreme Court of New York

Rochester Poster Advertising Co. v. Town of Penfield

51 A.D.2d 870, 380 N.Y.S.2d 153, 1976 N.Y. App. Div. LEXIS 11490

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

DecidedFebruary 20, 1976

StatusPublished

Cited by8 cases

This text of 51 A.D.2d 870 (Rochester Poster Advertising Co. v. Town of Penfield) 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

Rochester Poster Advertising Co. v. Town of Penfield, 51 A.D.2d 870, 380 N.Y.S.2d 153, 1976 N.Y. App. Div. LEXIS 11490 (N.Y. Ct. App. 1976).

Pincite

Opinion

Order unanimously affirmed, with costs. Memorandum: Defendant appeals from an order of the Monroe County Supreme Court which permitted plaintiff to amend the complaint after the original pleading was dismissed pursuant to CPLR 3211 (subd [a]). Although at the time of defendant’s motion under CPLR 3211 (subd [a]), plaintiff did not request leave to replead as mandated by CPLR 3211 (subd [e]) that failure does not require reversal of the order (CPLR 3025, subd [b]; VanMinos v Merkley, 48 AD2d 281). Furthermore, while the court dismissed plaintiff’s original complaint "on the merits,” that dismissal does not constitute a final determination of the case, since on appeal from that decision, we specifically limited our affirmance of the dismissal to plaintiff’s failure to plead an essential element of the cause of action (Rochester Poster Advertising Co. v Town of PenSeld, 46 AD2d 726). Defendant’s argument that the action has become moot is without merit since the purpose behind plaintiff’s suit is to challenge the constitutionality of defendant’s ordinance. (Appeal from order of Monroe Supreme Court granting motion to amend complaint.) Present— Marsh, P. J., Moule, Simons, Mahoney and Goldman, JJ.

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Order unanimously affirmed, with costs. Memorandum: Defendant appeals from an order of the Monroe County Supreme Court which permitted plaintiff to amend the complaint after the original pleading was dismissed pursuant to CPLR 3211 (subd [a]). Although at the time of defendant’s motion under CPLR 3211 (subd [a]), plaintiff did not request leave to replead as mandated by CPLR 3211 (subd [e]) that failure does not require reversal of the order (CPLR 3025, subd [b]; VanMinos v Merkley, 48 AD2d 281). Furthermore, while the court dismissed plaintiff’s original complaint "on the merits,” that dismissal does not constitute a final determination of the case, since on appeal from that decision, we specifically limited our affirmance of the dismissal to plaintiff’s failure to plead an essential element of the cause of action (Rochester Poster Advertising Co. v Town of PenSeld, 46 AD2d 726). Defendant’s argument that the action has become moot is without merit since the purpose behind plaintiff’s suit is to challenge the constitutionality of defendant’s ordinance. (Appeal from order of Monroe Supreme Court granting motion to amend complaint.) Present— Marsh, P. J., Moule, Simons, Mahoney and Goldman, JJ.

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Bluebook (online)

51 A.D.2d 870, 380 N.Y.S.2d 153, 1976 N.Y. App. Div. LEXIS 11490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rochester-poster-advertising-co-v-town-of-penfield-nyappdiv-1976.

Opinion

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