Slabakis v. Schik

2017 NY Slip Op 6884, 154 A.D.3d 407, 60 N.Y.S.3d 813

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 19, 2016, which granted defendants-appellants’ motion to dismiss without prejudice and with leave to replead, unanimously affirmed, with costs.

The court providently exercised its discretion by granting plaintiff leave to replead because one cannot determine, as a matter of law, that he will be unable to allege the requisite elements of the various causes of action (see e.g. Davis v Scottish Re Group Ltd., 138 AD3d 230, 236, 238 [1st Dept 2016]).

Plaintiff has since repled his complaint; thus, “the sufficiency of the allegations in the earlier complaint is rendered academic” (Peters v Peters, 118 AD3d 593, 594 [1st Dept 2014]).

Concur — Sweeny, J.P., Moskowitz, Kahn and Gesmer, JJ.