In Jobar Holding Corp. v Halio 2024 NY Slip Op 32650(U) July 10, 2024 Supreme Court, New York County Docket Number: Index No. 655689/2017 Judge: Joel M. Cohen, plaintiff attempted to use a subsequent case decision to revive a dismissed case via amendment, The attempt failed.
“By order dated September 23, 2019, the Court (Scarpulla, J.) dismissed without prejudice Plaintiffs Complaint as against T &E for aiding and abetting fraud, aiding and abetting breach of fiduciary duty, accountant malpractice, fraud, and negligent misrepresentation due to the “mixing of derivative and individual claims … ” (Johar Holding Corp. v Halio, 2019 N.Y. Slip Op. 32813[U], 7 [N.Y. Sup Ct, New York County 2019]). Plaintiffs subsequently filed an Amended Complaint asserting claims against T &E for Civil RICO, fraud, aiding and abetting fraud, aiding and abetting breach of fiduciary duty and breach of the covenant of good faith and fair dealing. By order dated October 7, 2020, the Amended Complaint was dismissed as against T &E on the grounds that the RICO claims were conclusory; that Plaintiffs continued to mix derivative and individual claims; and because certain claims were untimely (NYSCEF 184, NYSCEF 235 [Transcript at 41-466). Plaintiffs now move for leave to amend on based on the First Department’s decision in 1650 Broadway Assoc., Inc. v Sturm, 210 NYS3d 19 [1st Dept 2024] [“1650 Broadway”]). In 1650 Broadway, the First Department reinstated claims for accounting malpractice and aiding and abetting fraud based on allegations that the defendant did not comply with the “standard of a reasonable accountant under similar circumstances … ” (id.). Plaintiffs argue that their Third Amended Complaint (NYSCEF 280) seeking to re-assert claims from their previously dismissed Complaint and Amended Complaint should be accepted because it pleads claims consistent with those in 1650 Broadway. T &E was not served with a copy of the motion to amend. However, T &E learned of the motion in connection with Plaintiffs request for an extension of time to perfect an appeal. T &E subsequently submitted a letter dated July 1, 2024, in opposition to Plaintiffs motion.
While styled as a motion to amend, Plaintiffs motion is actually a motion to reargue the Court’s prior dismissal order based on new case law (Mears v Chrysler Fin. Corp., 243 AD2d 270,272 [1st Dept 1997] citing George W Collins, Inc. v Olsker-McLain Indus., Inc., 22 AD2d 485,488 [4th Dept 1965] [a motion affecting a prior order must be made pursuant to CPLR 2221 ]). CPLR 2221 ( e )(2) provides, in relevant part, that the Court may grant leave to renew if the movant can “demonstrate there has been a change in the law that would change the prior determination … ” A new decision that applies existing law is not a “change in the law” that warrants renewal (Kreisler v B-U Realty Corp., 198 AD3d 568, 568 [1st Dept 2021]). Similarly, a new decision that is decided on inapposite facts is not sufficient to warrant renewal (Lucente v Riverbay Corp., 58 AD3d 451,452 [1st Dept 2009]). Contrary to Plaintiffs assertions, 1650 Broadway, does not warrant renewal or leave to amend. 1650 Broadway applied the law as it existed at the time of the Court’s dismissal order and does not concern derivative claims or timeliness concerns. Accordingly, leave to renew and leave to amend are not warranted.”