PLOTCH v. CITIBANK (2025)

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered July 25, 2024, which granted plaintiff's motion for a default judgment pursuant to CPLR 3215 to the extent of directing defendants to submit an answer in response to the amended verified complaint, unanimously reversed, on the law and the facts, with costs, the motion denied, and the order, same court and Justice, entered April 20, 2023, dismissing the complaint, reinstated.

The service of an amended pleading does not automatically moot a pending motion to dismiss, and defendant has a right to determine whether it will opt to apply its pending motion to the new pleadings (see Fownes Bros. & Co., Inc. v. JPMorgan Chase & Co., 92 A.D.3d 582, 582, 939 N.Y.S.2d 367 [1st Dept. 2012];  Sage Realty Corp. v. Proskauer Rose LLP, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14 [1st Dept. 1998]).  Furthermore, a court may apply a motion to dismiss toward the amended complaint where plaintiff sought the amendment rather than to defend the original complaint (see DiPasquale v. Security Mut. Life Ins. Co. of N.Y., 293 A.D.2d 394, 395, 740 N.Y.S.2d 626 [1st Dept. 2002]).

Here, defendants' motion to dismiss the original complaint could properly be directed toward the amended complaint because the theory underlying the original complaint—namely, that defendants failed to furnish certain information necessary for plaintiff's board application—remained unchanged, aside from several clarifying additions to the original pleading.  Plaintiff's causes of action for declaratory judgment concerning the return of the deposit and liquidated damages provision, rescission, and breach of implied covenant of good faith and fair dealing are all duplicative of his breach of contract claim, as they are based on the same underlying facts (see Colfin SNP–1 Funding, LLC v. Security Natl. Props. Servicing Co., LLC, 199 A.D.3d 406, 407, 153 N.Y.S.3d 863 [1st Dept. 2021];  Lantau Holdings Ltd. v. General Pac. Group Ltd., 163 A.D.3d 407, 409, 81 N.Y.S.3d 384 [1st Dept. 2018];  Rossetti v. Ambulatory Surgery Ctr. of Brooklyn, LLC, 125 A.D.3d 548, 549, 5 N.Y.S.3d 373 [1st Dept. 2015]).

As to plaintiff's breach of contract cause of action, neither the original nor the amended complaint identify which provision of the terms of sale defendants breached and which obligation they failed to perform.  Moreover, defendants submitted documentation demonstrating that plaintiff neither closed within 30 days of the auction, nor had he been approved or rejected by the board.

Motion to dismiss the appeal, denied.