In a February 25, 2011 decision by Justice Demarest the Court awarded sanctions against a lawyer who refused to submit opposition to a motion to dismiss, arguing that his service of an amended answer with counterclaims mooted the motion.
The motion in question was the plaintiff’s second motion to dismiss. Plaintiff’s first motion to dismiss was addressed to defendant’s answer with counterclaims. After receipt of the motion papers defendant served an amended answer with counterclaims. On the return date defendant argued that he did not need to oppose the initial motion to dismiss because the motion was mooted by his filing of an amended pleading – though he refused to even file this amended pleading in opposition to the motion to dismiss. The Court took the position that, while defendant may have had an opportunity to amend his pleading as of right, the “better rule” to follow would be the defendant’s submission of his amended pleading in opposition to the motion, so that the plaintiff could choose to either withdraw his motion or have it applied against the amended pleading. The Court found that the defendant’s refusal to submit the amended pleading in opposition to the original motion to dismiss was “gamesmanship” and necessitated the second motion to dismiss; and was frivolous conduct allowing the issuance of sanctions against defendant’s attorney in the form of costs and reasonable attorneys’ fees incurred in bringing the second motion to dismiss.
Toikach v. Basmanov, Sup Ct, Kings County, February 25, 2011, Demerast, J, Index No. 224/10.