FELKER v. JG WORLDWIDE LLC LLC LLC (2020)

Plaintiff commenced this action by summons and complaint dated July 10, 2019. Defendants moved to dismiss the complaint under CPLR 3211 on November 7, 2019. On January 22, 2020, plaintiff served and filed a purported amended complaint, which substantially changed both the complaint's asserted causes of action and the supporting factual allegations. On January 23, 2020, plaintiff also filed an opposition to defendants' motion to dismiss the original complaint.

Defendants have not challenged plaintiff's right to amend her complaint. To the contrary, defendants and plaintiff have stipulated to extend defendants' time to answer or move to dismiss the amended complaint. The stipulation provides that defendants' time to respond shall run from when this court resolves the motion to dismiss the original complaint.

This court concludes that given the parties' stipulation, plaintiff shall be deemed to have amended her complaint and that the amended complaint and its accompanying exhibits (comprising NYSCEF Nos. 19-28) should be treated as the operative pleading in the action. This court further concludes that the differences between plaintiff's original complaint and her amended complaint render defendants' motion to dismiss the original complaint academic.

One final point bears mention: Because the filing of papers in this action is currently suspended under the March 22, 2020, order issued by Chief Administrative Judge Lawrence Marks in light of the coronavirus pandemic (see AO/78/20), defendants may not be able to respond to plaintiff's amended complaint within 20 days of this order, as called for by the parties' stipulation. The time for defendants to respond should instead run from the later of 20 days from the date this order is entered or 20 days from the date on which new filings are again permitted.

Accordingly, it is hereby

ORDERED that the document filed by plaintiff on January 22, 2020, and styled the Amended Verified Complaint, shall, with its accompanying exhibits, be treated as plaintiff's operative pleading in this action; and it is further

ORDERED that defendants' motion to dismiss plaintiff's complaint dated July 10, 2019, is denied as academic; and it is further

ORDERED that defendants' time to respond to plaintiff's amended complaint is extended until 20 days from the date of entry of this order on NYSCEF or until 20 days from the date on which the suspension on new filings imposed by AO/78/20 is lifted, whichever is later.

Gerald Lebovits, J.