IN RE: DENTSPLY SIRONA (2021)

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered September 30, 2019, dismissing the consolidated amended complaint (CAC), unanimously modified, on the law, to make the dismissal with prejudice, and otherwise affirmed, without costs. Appeals from order, same court and Justice, entered on or about September 26, 2019, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court and Justice, entered on or about February 6, 2020, which denied plaintiffs' motion to vacate the judgment and for leave to file a second consolidated amended complaint, unanimously affirmed, with costs.

Defendants may cross-appeal since they did not obtain complete relief because the dismissal of the CAC was without prejudice (see Matter of Blum v. Pathstone Corp., 172 A.D.3d 1679, 1680, 102 N.Y.S.3d 134 [3d Dept. 2019]; see generally Parochial Bus Sys., Inc. v. Board of Educ. of the City of N.Y., 60 N.Y.2d 539, 544–545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983]).

Plaintiffs' claims should have been dismissed as time-barred (see 15 USC § 77m). Plaintiffs do not dispute that they could have discovered the alleged misrepresentations and omissions before June 7, 2017 (one year before the first complaint in this action); instead, they contend that they could not have brought claims under sections 11 and 12(a)(2) of the Securities Act of 1933 (15 USC §§ 77k and 77l[a][2]) until August 2017, when the stock price of defendant Dentsply Sirona, Inc. declined precipitously. This argument is unavailing.

Section 12(a)(2) does not require damages. Rather, it permits rescission, and rescission is the relief sought by the named plaintiffs in this case.

As for section 11, “a plaintiff need not plead damages under” that section (NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 165 [2d Cir. 2012], cert denied 568 U.S. 1228, 133 S.Ct. 1624, 185 L.Ed.2d 576 [2013]; see also In re Under Armour Sec. Litig., 342 F. Supp. 3d 658, 672 [D. Md. 2018]). Plaintiffs rely on Yi Xiang v. Inovalon Holdings, Inc., 254 F. Supp. 3d. 635, 641 (S.D. N.Y. 2017). However, to the extent that Yi Xiang conflicts with NECA, we follow NECA as the controlling authority.

Defendants submitted documentary evidence that the price of Dentsply Sirona stock was less than the offering price on numerous occasions before June 7, 2017. Hence, plaintiffs could have “satisf[ied] the court that [they] ha[d] suffered a cognizable injury” (NECA, 693 F.3d at 165) and filed a timely lawsuit.

A dismissal based on the statute of limitations “is on the merits” (De Crosta v. Reynolds Constr. & Supply Corp., 41 N.Y.2d 1100, 1101, 396 N.Y.S.2d 357, 364 N.E.2d 1129 [1977]). Therefore, we modify the judgment to make the dismissal with prejudice.

The court providently exercised its discretion (see e.g. Nash v. Port Auth. of N.Y. & N.J., 22 N.Y.3d 220, 225–226, 980 N.Y.S.2d 880, 3 N.E.3d 1128 [2013]) by denying plaintiffs' motion to vacate the judgment. “A court's inherent power to exercise control over its judgments ․ should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [1984] [brackets and internal quotation marks omitted]). As the motion court noted, plaintiffs did not claim the judgment was taken through the grounds listed in McKenna.

Given the court's denial of vacatur, its denial of leave to amend was also proper (see Tanner v. Stack, 176 A.D.3d 429, 107 N.Y.S.3d 660 [1st Dept. 2019]).

Motion for judicial notice denied.