Senate Bill S4870

                                 BILL NUMBER:  S4870

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to the motion to dismiss a cause of action

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure would ensure that when a party moves to dismiss a
complaint for failure to state a cause of action, and makes arguments
addressed to specific causes of action, the court would be required to
decide the viability of each cause of action addressed. While most
courts already do so, this measure would overrule those judicial
decisions holding that when the notice of motion seeks dismissal of
the complaint generally, it should be denied in its entirety once the
court determines that a single cause of action is viable even if
particularized arguments are made in the supporting papers. By not
ruling with respect to each cause of action addressed, courts
following this approach fail to streamline the litigation and thereby
undermine judicial economy. They also make settlement more difficult.

We believe that the proper approach was articulated by the First
Department in Gamiel v. Curtis v. Riess-Curtis, 16 AD3d 140 (1st Dept
2005). The court there stated that "(where) a motion to dismiss for
failure to state a cause of action particularizes each of the claims
              

in the complaint, even though it is nominally addressed to the
complaint as a whole, the court should treat that motion as applying
to each individual cause of action alleged.... " Id. (emphasis added).
Inasmuch as the defendant's supporting affirmation in Gamiel made
particularized arguments as to the various claims in the complaint,
the court denied the motion as to certain claims but granted it as to
three others, allowing the case to proceed only on those claims that
warranted further attention by the litigants and the lower court.

Unfortunately, not all courts have follow this approach. For example,
in Great Northern Assoc. v. Continental Casualty Co., 192 AD2d 976
(3rd Dept 1993), review of the record shows that while the notice of
motion sought dismissal of the entire complaint, the supporting
affirmation made detailed arguments as to each cause of action.
Nonetheless, the Third Department found "(no) error in Supreme Court's
wholesale denial of (the) motion to dismiss upon the conclusion that
two of the 13 claims stated viable causes of action." The court wrote
that the result was dictated by "clear and well established" precedent
in the Third Department. This case demonstrates the need to codify
Gamiel.

The Second Department had held that if particularized arguments are
made in an affirmation in support of a motion nominally addressed to
the complaint as a whole, courts should address each cause of action.
Martirano Construction Corp. v. Briar Construction Corp., 104 AD2d
1028, 1029 (2nd Dept 1984). Where particularized arguments are made
only in the lower court brief, however, even if the affirmation
references the particularized reasons given in the brief, the court
has denied a motion to dismiss a complaint in its entirety upon
finding one cause of action to be viable. Long Island Diagnostic
Imaging v. Stony Brook Diagnostic Assoc., 215 AD2d 450 (2nd Dept
1995). It did so in that case even though the movant had made detailed
arguments as to each of 19 causes of action in its lower court brief.

The approach that a motion should be denied so long as one cause of
action is viable appears to have its roots in older cases like Advance
Music Corp. v. American Tobacco, 296 N.Y. 79, 93 (1946). That case
held, under the Rules of Civil Practice, that a motion to dismiss for
insufficiency seeking dismissal of an entire pleading must be denied
under the rule that a "demurrer to a 'declaration' containing several
counts should be overruled if any count is good."  The decision did
not recognize an exception even for cases in which particularized
argument is made as to each cause of action. See Griefer v. Newman, 22
AD2d 696 (2nd Dept 1964) (reaching same result "early in the life of
the CPLR," Prof. Siegel, McKinney's Commentaries 3211:26). Some lower
courts relying on the broadly stated rule in Advance Music have denied
motions to dismiss the complaint -- without any discussion of whether
particularized argument was made as to each of several causes of
action -- upon finding only one cause of action to be viable. E.g.,
Plata v. Parkway Village Equities Corp., 2013 N.Y. Misc. LEXIS 3478
(Sup. Ct. Queens Co., June 13, 2013).

The mere fact that a notice of motion nominally seeking dismissal of
the entire complaint does not needlessly specify by number each and
every cause of action should not be grounds for denying the entire
motion upon a finding that a single cause of action is viable. Such an
approach exalts form over substance and results in a waste of the
parties' time and resources. The critical factor should be whether the
movant has set forth arguments as to each cause of action. If
particularized arguments are made, either in a supporting affirmation
or an accompanying memorandum of law, the litigants should be entitled
to a decision that eliminates claims that are not viable. A decision
addressing each cause of action properly limits future discovery,
narrows the issues at trial, and enhances the likelihood of
settlement, thus serving the interests of judicial economy.

This measure, which would have no fiscal impact on the State, would
take effect on the first of January next succeeding the date on which
it shall have become law.

 LEGISLATIVE HISTORY :

None. New proposal.