Aretakis v Sheehan

[*1] Aretakis v Sheehan 2023 NY Slip Op 50951(U) Decided on August 28, 2023 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 28, 2023
Supreme Court, Kings County

John Aretakis, Plaintiff,

against

Jonathan Sheehan, Christy Sheehan, Barchord, Barchord Inc., and R&H Construction, Defendants.



Index No. 635/2022



Plaintiff John Aretakis, Pro Se

Attorney for Defendants Johnathan Sheehan, Christy Sheehan, and Barchord Inc.
Larry C. Green, Esq.
O'Toole Scrivo LLC
535 Fifth Avenue, 4th Fl.
New York, NY 10017
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by defendants Johnathan Sheehan, Christy Sheehan, and Barchord Inc. (hereinafter collectively as the Barchord defendants) on March 23, 2023, under motion sequence two for an order: (1) pursuant to CPLR §§ 3211 (a) (1), (3), (5) and (7) and CPLR 321(a) dismissing the amended verified complaint of John Aretakis (hereinafter the plaintiff); and (2) pursuant to 22 NYCRR 130-1.1 and CPLR 8303-a awarding costs and sanctions against the plaintiff.[FN1]

• Notice of Motion

• Memorandum of Law in Support

• Affidavit of defendant Jonathan Sheehan in Support

• Exhibit A-D

• Affirmation in Support

• Exhibit 1-4

• Affidavit in Opposition

• Exhibits A-D

• Memorandum of Law in Reply

BACKGROUND

On October 11, 2022, the plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). The original verified complaint contains one hundred and eighty-one allegations of fact and asserts sixteen denominated causes of action.

On March 23, 2023, the Barchord defendants filed the instant motion.

On April 26, 2023, the plaintiff filed an amended verified complaint with the KCCO. The amended verified complaint contains two hundred and twenty-one allegations of fact and asserts eighteen denominated causes of action.

On July 24, 2023, defendant R&H Construction [FN2] filed a notice of appearance; and filed a verified answer to the amended verified complaint with the KCCO.

LAW AND APPLICATION

The Barchord defendants seek, among other things, dismissal of the plaintiff's verified complaint pursuant to CPLR 3211 (a)(1), (3), (5), and (7). In the interest of judicial economy, the CPLR 3211 (a) (7) ground should be analyzed first. If the verified complaint fails to state a cause of action, then the Court need not determine the other subsections of CPLR 3211(a) as a basis for dismissal (Mt. Hope Universal Baptist Church, Inc. v Bowen, 53 Misc 3d 1208 [A] [Sup Ct, Kings County 2016]).

On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Davidoff v Kaplan, 217 AD3d 918, 919 [2d Dept 2023], citing Olden Group, LLC v 2890 Review Equity, LLC, 209 AD3d 748, 751 [2d Dept 2022]). Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed (Davidoff 217 AD3d at 919, citing Edelman v Berman, 195 AD3d 995, 996 [2d Dept 2021]).

CPLR 3025(a) provides in pertinent part that a party my amend his or her pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. In the case at bar, the plaintiff properly amended the verified complaint pursuant to CPLR 3025(a) by [*2]filing an amended complaint with the KCCO on April 26, 2023. As of April 26, 2023, the Barchord defendants had not yet interposed an answer to the verified complaint.

An amended pleading, once served, supersedes the initial pleading, and becomes the only pleading in the case as though the initial pleading was never served (see Elegante Leasing, Ltd. v. Cross Trans Svc, Inc., 11 AD3d 650 [2d Dept 2004]; see also Titus v Titus, 275 AD2d 409 [2d Dept 2000]). Once an original complaint is superseded by an amended complaint, it is no longer viable since the amended complaint takes the place of the original pleading (Mees v Buiter, 186 AD3d 1670, 1672—73 [2d Dept 2022], citing 100 Hudson Tenants Corp. v Laber, 98 AD2d 692, 692 [2d Dept 1983]).

Although the Kings County Clerk minutes does not reflect a filed affidavit of service of the amended verified complaint, the plaintiff's opposition papers to the instant motion have annexed the amended verified complaint as exhibit A. The Barchord defendants' affirmation in reply acknowledges the amended complaint without objection to its inclusion in the opposition papers. Under these circumstances, there is therefore no dispute that the verified complaint originally, filed with the KCCO on October 11, 2022, has been superseded by the amended verified complaint.

Consequently, the instant motion, filed before the original complaint was superseded, is no longer applicable, rendered academic, and denied without prejudice. Similarly, the branches of the Barchord defendants' motion seeking sanction pursuant to 22 NYCRR 130-1.1 and CPLR 8303-a based on the alleged frivolity of the original complaint are denied without prejudice.

Defendants Johnathan Sheehan, Christy Sheehan, and Barchord Inc. are directed to file an answer to the amended complaint or move to dismiss it within thirty days of notice of entry of the instant decision and order. If these defendants move to dismiss the amended verified complaint, they are directed to make sure the motion papers are properly bound, that the annexed exhibits are properly tabbed and indexed, and that the motion papers comply with Article 21 of the CPLR. Also, all annexed documents must be clear and in a legible font size.[FN3]

The foregoing constitutes the decision and order of this Court.

Dated: August 28, 2023
HONORABLE FRANCOIS A. RIVERA
J.S.C Footnotes

Footnote 1:On November 29, 2022, the Barchord defendants filed a motion under motion sequence number one seeking the exact same relief sought in the instant motion. By decision and order date March 20, 2023, the Barchord defendants' motion sequence number one was denied without prejudice for failure to include an affidavit from a person with personal knowledge of any the allegation of fact supporting the relief requested in their motion papers.

Footnote 2:Defendant R&H Construction asserted in its verified answer and in its notice of appearance that it was incorrectly named and that its correct name is R.H. Construction USA Inc. The Court will not correct the name in the absence of a notice of motion seeking such relief or a stipulation consenting to same by all the parties.

Footnote 3:The Plaintiff's opposition papers accurately pointed out that many of the Barchord defendants' annexed exhibits were in too small a font size to be legible.