3467 Ready, Set, Learn, LLC v Rodriguez
Annotate this CaseDecided on March 22, 2013
Supreme Court, Bronx County
3467 Ready, Set, Learn, LLC, Plaintiff,
against
Josephine E. Rodriguez, Dery Rodriguez, Marlon Marshall, and Building Young Professionals, LLC, Defendants.
21428/11E
Alexander W. Hunter Jr., J.
Motion by defendants for an order dismissing the complaint in this action, pursuant to CPLR 3211 (a) (7), is hereby sua sponte converted into a motion for summary judgment, pursuant to CPLR 3211 (c), with leave for the parties to submit any evidence that could properly be considered on a motion for summary judgment.
The instant action involves causes of action for intentional interference with contractual relations, intentional interference with prospective economic relations, breach of contract, breach of fiduciary duty, and defamation in connection with school-age child care programs.
The instant action was commenced by the filing of the summons and complaint on September 19, 2011. Plaintiffs also moved by order to show cause for a preliminary injunction, which this court deemed moot by order dated November 28, 2011, due to plaintiff withdrawing its motion. Defendants served an answer to the complaint on October 12, 2011, which asserted several affirmative defenses, including failure to state a cause of action and no personal jurisdiction.
Defendants Dery Rodriguez, Marlon Marshall, and Building Young Professionals, LLC, then moved for an order dismissing the complaint in this action on the ground of lack of personal jurisdiction, pursuant to CPLR 3211 (a) (8). By decision and order dated March 2, 2012, this court denied the motion to dismiss the complaint. This court made its determination denying the motion to dismiss on the merits, concluding that the moving defendants were properly served with a copy of the summons and complaint within the 120 day period prescribed by CPLR 306-b.
Defendants now improperly move a second time to dismiss the complaint. A motion to dismiss may be based on one or more of the grounds enumerated in CPLR 3211 (a), however, pursuant to CPLR 3211 (e), only one such motion is permitted. It should be noted that the procedural history of the instant action does not place it under one of the narrow exceptions to [*2]the single motion rule as the complaint and answer have already been served and the prior motion to dismiss was decided on the merits. See e.g. Rivera v. Board of Educ. of the City of NY, 82 AD3d 614, 2011 NY Slip Op 02142 (1st Dept 2011); Fraley v. Desilu Prods., 23 AD2d 79 (1st Dept 1965).
"The defense of failure to state a cause of action is not lost, however, by failure to include this ground in the motion under [CPLR 3211 (e)]. Although it may not be raised in another motion under that section (of which the statute permits only one) it may be later raised in another form." McLearn v. Cowen & Co., 60 NY2d 686, 689 (1983). "Despite the fact that the single motion rule of CPLR 3211(e) would preclude defendant from moving to dismiss the complaint for failure to state a cause of action defendant may still move for summary judgment." Ancrum v. St. Barnabas Hosp., 301 AD2d 474, 475 (1st Dept 2003).
A motion based on the ground of failure to state a cause of action may be made at any time, pursuant to CPLR 3211 (e), but a motion to dismiss is not the proper procedural vehicle for such a motion at this time. In addition, defendants already raised failure to state a cause of action as an affirmative defense in their answer. Based on the foregoing, this court finds that defendants' motion to dismiss should be converted into a motion for summary judgment. As this court did not receive any papers in opposition to the instant motion, it is essential that adequate notice is given to the parties to allow them to properly develop the record.
Accordingly, motion by defendants for an order dismissing the complaint in this action, pursuant to CPLR 3211 (a) (7), is hereby sua sponte converted into a motion for summary judgment, pursuant to CPLR 3211 (c), with leave for the parties to submit any evidence that could properly be considered on a motion for summary judgment.
Movants are directed to serve a copy of this order with notice of entry on all parties and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated:March 22, 2013
ENTER:
________________________
J.S.C.
[*3]
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