This decision is worth reading a few times over. CPLR 3211(e) had this language in it (I took this quote from the decision):
"Where a motion is made on the ground set forth in paragraph seven of
subdivision (a), or on the ground that a defense is not stated, if the
opposing party desires leave to plead again in the event the motion is
granted, he shall so state in his opposing papers and may set forth
evidence that could properly be considered on a motion for summary
judgment in support of a new pleading; leave to plead again shall not
be granted unless the court is satisfied that the opposing party has
good ground to support his cause of action or defense; the court may
require the party seeking leave to plead again to submit evidence to
justify the granting of such leave."
In 2005, it was amended, taking out that provision, but leaving the motion to replead intact, confusing everybody. This decision attempts to make sense of the change and implores the legislature to do something about the confusion.
CPLR R. 3211 Motion to dismiss
Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd)
On the instant appeal, we consider, inter alia, the issue of whether a
motion for leave to replead, pursuant to the current version of CPLR
3211(e), is subject to any time limitation. In 2005, the Legislature
amended CPLR 3211(e). Although this amendment did not prescribe any
time limitation within which a party may move for leave to replead, the
defendants invite this Court to "fill the temporal gap" and impose a
30-day limitation, akin to a motion for leave to reargue pursuant to
CPLR 2221(d)(3). For the reasons that follow, we decline the
defendants' invitation. We will not partake in judicial legislation by
creating a time limitation where none is present in the statute.…In 2005, the Chief Administrative Judge, upon the recommendation of
his Advisory Committee on Civil Practice, introduced a bill to amend
CPLR 3211(e) with regard to motions for leave to replead to remedy the
conflict between the statute and Rovello. As additional explanation, the drafters stated:"Further, the requirement of [the former] rule 3211(e)
that a pleader request leave to replead in the opposing papers, if
enforced literally, creates a trap for the unwary. This requirement,
which has no analogue in Federal practice and is buried deep in one of
the longest paragraphs in the CPLR, has been overlooked in a
substantial number of cases, and has recently caused courts to struggle
to read into an apparent absolute provision an ability to relieve
pleaders of their omission of the request for leave to replead. (See, e.g. Sanders v Schiffer, 39 NY2d 727, 729, and compare Bardere v Zafir, 63 NY2d 850, 853)."Our
Advisory Committee believes that the present wording of [the former]
rule 3211(e) causes unnecessary litigation expense and complexity
without any countervailing benefit, and invites the inadvertent
jeopardizing of a litigant's rights if counsel is unaware of the
requirement to request leave to replead. In the case of a pro se
pleader, he or she is almost certain to be unaware of this requirement.
Thus, we urge that it be repealed. Moreover, we recommend that rule
3211(e) be [*8]conformed to the Rovello doctrine."(2005 NY Legis Ann, ch 616, at 358).
Consistent therewith, CPLR 3211(e) was amended (see L 2005,
ch 616). This amendment is applicable to actions, such as the instant
matter, commenced after January 1, 2006. Simply stated, the amended
version of CPLR 3211(e) eliminated the three requirements previously
noted.The amended version was intended and served to remedy problems
inherent in the prior version. However, as noted by several
commentators, the amendment left "a number of questions unanswered"
(Weinstein-Korn- Miller, NY Civ Prac, ¶ 3211.32 [2d ed]; see 56 Syracuse L Rev. 527, 538).…
First, did the Legislature, in amending the subject statute, in effect,
eliminate a motion for leave to replead? A reading of the amended
version of CPLR 3211(e) reveals that the language pertaining to a
motion for leave to replead was removed from the body of that statute.
The only mention of a motion for leave to replead appears in the
statutory heading or title which expressly references "motions to plead
over." Inasmuch as there is no indication in the legislative history to
suggest that the Legislature intended to abrogate or do away altogether
with a motion for leave to replead, this Court will not presume such an
intent. Accordingly, for the present time, a motion for leave to
replead remains a useful and necessary component of a practioners'
arsenal in the context of civil litigation.Second, what standard should now be applied on a motion for leave to
replead? With regard to this question, we hold that the standard to be
applied on a motion for leave to replead pursuant to CPLR 3211(e) is
consistent with the standard governing motions for leave to amend
pursuant to CPLR 3025. Namely, motions for leave to amend pleadings
should be freely granted absent prejudice or surprise to the opposing
party, unless the proposed amendment is devoid of merit or palpably
insufficient (see Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Shovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120; Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017; Lucido v Mancuso, 49 AD3d 220, 229; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d 436, 437; Trataros Constr., Inc. v New York Hous. Auth., 34 AD3d 451, 452-453; Glaser v County of Orange, 20 AD3d 506).
Applying this standard to the facts of this case, the Supreme
Court properly granted the plaintiff's motion. The plaintiff's proposed
amendments simply sought to cure the deficiencies cited by the Supreme
Court in its earlier order which resulted in the dismissal (see Donovan v Rothman, 253
AD2d 627, 630). The defendants cannot legitimately claim surprise or
prejudice, where the proposed amendments were premised upon the same
facts, transactions or occurrences alleged in the original complaint (see Whitehorm Assoc. v One Ten Brokerage, 264 AD2d 516, 517; Llama v Mobil Serv. Sta., 262 AD2d 457; Barraza v Sambade, 212
AD2d 655, 656). On the facts presented, the proposed amendments cannot
be characterized as palpably improper or insufficient as a matter of
law (see Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959).
The third and perhaps most pressing question raised by the
defendants herein is: Should any time limitation be required upon which
to move for leave to replead? The defendants contend that the
Legislature, in amending CPLR 3211(e), inadvertently removed
restrictions limiting the time in which a party could move for leave to
replead. They urge this Court to impose a 30-day time restriction akin
to that governing motions for leave to reargue (see CPLR 2221[d][3]).
The starting point of analysis must be the plain meaning of the statutory language, since it is the [*9]statutory text which is "'the clearest indicator of legislative intent'" (Ragucci v Professional Constr. Servs., 25 AD3d 43, 47, quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583; see Bluebird Partners v First Fid. Bank, 97 NY2d 456, 460-461). The clear language of the amended version of CPLR 3211(e) does not prescribe any time limitation within which a party may move for leave to replead.
"'[A] court cannot amend a statute by inserting words that are
not there, nor will a court read into a statute a provision which the
Legislature did not see fit to enact'" (Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85
NY2d 382, 394, quoting McKinney's Cons Laws of NY, Book 1, Statutes §
363, at 525). It is a basic rule in the construction and interpretation
of statutes that the courts should avoid judicial legislation (see McKinney's
Cons Laws of NY, Book 1, Statutes § 73, at 145). "[T]he judicial
function is to interpret, declare, and enforce the law, not to make it,
and it is not for the courts to correct supposed errors, omissions or
defects in legislation" (id. at 147-148). The foregoing
principles of statutory construction exist for a reason. They
constitute beacons of guidance which this Court will follow and not
ignore. Our function is not to violate canons of statutory
construction. Accordingly, we will not insert into the amended version
of CPLR 3211(e) any time restriction. To do so would result in a
judicially "crafted" statute.
As evinced by this case, the Legislature's omission of a time
limitation upon which a party may move for leave to replead pursuant to
the amended version of CPLR 3211(e), has resulted in an unsettled
realm, plagued with uncertainty and confusion. We note that the Bill
Jacket relating to the amendment of CPLR 3211(e) is silent regarding
time limitations. Arguably, it is inherently inconsistent for a party
against whom a determination is rendered to be constrained by a time
limitation upon which to appeal (see CPLR 5513) and to move for leave to reargue (see CPLR
2221[d][3]), but that same party is not constrained by any time
limitation if he or she chooses to move for leave to replead pursuant
to CPLR 3211(e). There are important commonsense considerations for
requiring parties to comply with time limitations, including matters of
diligence, case management, finality of adjudication, order, and
continuity in the litigation process.
The issues and corollaries raised by this appeal call for
remedial action. CPLR 3211(e), as amended, has brought about at least
one possible unintended consequence. A motion for leave to replead has
been refashioned into little more than a poor substitute for or an
arcane alternative to a motion for leave to amend under CPLR 3025(b).
Ultimately, the statute may be deemed obsolete in light of CPLR
3025(b).
However, whether or not to impose a time limitation and to
address the concerns raised herein regarding the amended version of
CPLR 3211(e) is a determination within the functional parameters of the
Legislature, not of the Judiciary. We urge the Legislature to act
without delay in addressing the matters and concerns raised herein.
The bold is mine.
bruteforcelawyer.com 