F. A. Demartino, Plaintiff(s), v. LLC SUCHOFF LLC RANDOLPH (2026)

I. Recitation, as required by CPLR § 2219(a), of the papers considered in review of the Motion(s):

The following papers read herein: Numbered

Motion Seq. #1

Defendant's Notice of Motion, Affirmations, Memorandum of Law and Exhibits 1

Plaintiff's Affirmation in Opposition and Exhibits 2

Defendant's Affirmation in Reply and Exhibits 3

Motion Seq. #2

Plaintiff's Notice of Motion, Affirmation and Exhibits 1

Defendant's Affirmation in Opposition and Exhibits 2

II. Background

On July 25, 2025, Plaintiff commenced the instant action against Defendants by filing a summons with endorsed complaint seeking to recover monetary damages in the amount of $50,000.00 with interest, costs and disbursements, alleging the following: "FRAUD, SECTION 487 OF JUDICIARY LAW (FRAUD/FRAUD ON THE COURT)" (see summons with endorsed complaint). Thereafter, on August 4, 2025, Plaintiff filed an amended summons with endorsed complaint to correct a typographical error in the caption (hereinafter, "Amended Endorsed Complaint") (see amended summons with endorsed complaint). The underlying allegations remained the same.

On September 26, 2025, Defendants moved pursuant to CPLR 3211(a)(1) and (7) by pre-answer motion to dismiss Plaintiff's Amended Endorsed Complaint based upon documentary evidence and Plaintiff's failure to state a cause of action ("Motion #1"). Thereafter, Hon. A. G. issued an interim order prohibiting Plaintiff "from filing a cross-motion as offer of proof was insufficient and baseless" (see interim order/briefing schedule of Hon. A. G., dated October 21, 2025).

Plaintiff subsequently filed a second amended summons with endorsed complaint (hereinafter, "Second Amended Endorsed Complaint") on November 10, 2025. The underlying allegations remained unchanged but included an additional defendant: Allstate Insurance Company.

Thereafter, Plaintiff opposed Defendants' pre-answer motion to dismiss and Defendants replied. On January 2, 2026, Plaintiff subsequently moved by motion seeking to mark Defendants' pre-answer motion to dismiss off the calendar as moot, or alternatively, for leave to amend the pleading in line with the Second Amended Endorsed Complaint pursuant to CPLR 3025 ("Motion #2"). Defendants opposed.

Motion #1 and Motion #2 were submitted on January 7, 2026, and subsequently assigned to this Court for determination on June 15, 2026.

III. Discussion

i. Defendants' pre-answer motion to dismiss Plaintiff's Amended Endorsed Complaint

Pursuant to CCA § 903, the formal pleading requirements are inapplicable to an endorsed complaint in a Civil Court action, as its purpose is "merely to apprise defendant of the nature of the cause of action" (see Carcione v Rizzo, 154 Misc 2d 13 at 14 [App Term, 2d Dept 1992]; CCA 903).

CCA § 902(a)(1) states, in pertinent part:

"[i]f the plaintiff's cause of action is for money only, the cause of action may be set forth by indorsement upon the summons. The indorsement shall consist of a statement of the nature and substance of the cause of action, and the summons in such instance shall set forth the amount in which the plaintiff will take judgment in the event of default."

When an endorsed complaint fails to meet the requirements of CCA 902(a)(1), the defendant may request that the court direct plaintiff to serve and file a formal pleading (see CCA 902[e]; Messina v Lippman, 55 Misc 3d 1, 5-6 [App Term, 2d Dept 2016] [holding that the "pleading requirements of a formal pleading are not applicable to an indorsement pleading in a Civil Court action" and that the defendant's remedy was to seek a more formal pleading or discovery]).

Pursuant to CPLR 902(e), the Court grants Defendants' pre-answer motion to dismiss only to the extent of directing Plaintiff to serve and file a formal complaint within thirty (30) days of the date of entry of this decision and order, detailing the full nature and substance of the cause(s) of action. The failure to serve and file a formal complaint by the forementioned court-mandated deadline shall result in the dismissal of the instant action. Defendants' pre-answer motion to dismiss is otherwise denied.

On another note, the Court is unpersuaded by Plaintiff's contention that Defendants are precluded by the single motion rule of CPLR 3211(e) from making a "second" motion to dismiss should they choose to seek dismissal of the formal complaint, as Defendants' pre-answer motion to dismiss was not decided on the merits (see 2497 Realty Corp. v Fuertes, 232 AD3d 451, 451 [1st Dept 2024] [internal citation omitted]).

ii. Plaintiff's motion to amend the pleading

In light of the Court's directive instructing Plaintiff to serve and file a formal complaint, the branch of Plaintiff's motion seeking to mark Defendants' pre-answer motion to dismiss off the calendar is denied as moot. Further, the branch of Plaintiff's motion seeking leave to amend the pleading in line with the Second Amended Endorsed Complaint is similarly denied at this juncture as any issues regarding joinder of an additional defendant should be evaluated based on complete pleading.

Accordingly, Plaintiff's motion to amend the complaint is denied.

IV. Order

Accordingly, it is hereby:

ORDERED that Motion #1, Defendants' pre-answer motion to dismiss Plaintiff's Amended Endorsed Complaint is GRANTED to the extent that Plaintiff is directed to serve and file a formal complaint within thirty (30) days of the date of entry of this decision and order; and it is further

ORDERED that Plaintiff's failure to serve and file a formal complaint by the forementioned court-mandated deadline shall result in the dismissal of the instant action; and it is further

ORDERED that Motion #1, Defendants' pre-answer motion to dismiss Plaintiff's Amended Endorsed Complaint is otherwise DENIED; and it is further

ORDERED that Motion #2, Plaintiff's motion to amend the complaint is DENIED; and it is further

ORDERED that the parties are directed to appear for pre-trial conference in room 428, Civil Court of the City of New York, County of New York, 111 Centre Street, New York, NY 10013 on a date to be decided by the Clerk.

This constitutes the DECISION and ORDER of the Court.

DATE July 10, 2026

HON. WENDY CHANGYONG LI, J.C.C.

Wendy Changyong Li, J.