New York Court of Appeals, 1983

McLearn v. Cowen & Co.

New York Court of Appeals · Decided September 29, 1983

60 N.Y.2d 686; 455 N.E.2d 1256; 468 N.Y.S.2d 461; 1983 N.Y. LEXIS 3390

Cases that cite this one

52 later published cases cite this decision. The 25 that cite it most often are listed here.

Bert Cattle Co., Inc. v. Warren (Neb. 1991)
Mohamed v. Exxon Corp. (Tex. App. 1990)
Coastal Communications Service, Inc. v. City of New York (District Court, E.D. New York 2009)
Ultramar Energy Ltd. v. Chase Manhattan Bank, N.A. (Appellate Division of the Supreme Court of New York 1993)
Travelers Indemnity Co. v. Sarkisian (Appellate Division of the Supreme Court of New York 1988)
Bailey v. Peerstate Equity Fund, L.P. (Appellate Division of the Supreme Court of New York 2015)
Oakley v. County of Nassau (Appellate Division of the Supreme Court of New York 2015)
Ghee v. Washington Mutual Bank F.A. (New York Supreme Court 2006)
Troy v. Goord (Appellate Division of the Supreme Court of New York 2002)
Varo, Inc. v. Alvis PLC (Appellate Division of the Supreme Court of New York 1999)
Evans v. L.F. Rothschild, Unterberg, Towbin, Inc. (Appellate Division of the Supreme Court of New York 1987)
Farkas v. Tarrytown Lumber, Inc. (Appellate Division of the Supreme Court of New York 1987)
Guerra v. American Access Care Physician, PLLC (New York Supreme Court, New York County 2024)
Belton v. Borg & Ide Imaging, P.C. (Appellate Division of the Supreme Court of New York 2023)
Kassenoff v. Kasenoff (District Court, S.D. New York 2023)
Matter of Spicer v. Spicer (Appellate Division of the Supreme Court of New York 2018)
BIELBY, MARY KALK v. MIDDAUGH, DANIEL (Appellate Division of the Supreme Court of New York 2014)
Bielby v. Middaugh (Appellate Division of the Supreme Court of New York 2014)
Bielby v. Middaugh (Appellate Division of the Supreme Court of New York 2014)
BRITT, CARMEN v. BUFFALO MUNICIPAL HOUSING AUTHORITY (Appellate Division of the Supreme Court of New York 2013)
Britt v. Buffalo Municipal Housing Authority (Appellate Division of the Supreme Court of New York 2013)
Britt v. Buffalo Municipal Housing Authority (Appellate Division of the Supreme Court of New York 2013)
Albany Engineering Corp. v. Hudson River/Black River Regulating District (Appellate Division of the Supreme Court of New York 2013)
Albany Engineering Corp. v. Hudson River/Black River Regulating District (Appellate Division of the Supreme Court of New York 2013)
Miterko v. Peaslee (Appellate Division of the Supreme Court of New York 2011)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise the defense of failure to state a cause of action.

For a statement of the history of this appeal see 48 NY2d 696. Subsequent to that determination, plaintiff returned to the Federal courts for clarification of the District Court determination as to dismissal of her State law cause of action. Pending such clarification she moved for reargument in our court. We denied that motion without prejudice to renewal following clarification by the Federal courts (52 NY2d 896). On January 20, 1982, the Federal District Court amended its original order of dismissal to include the provision, “The foregoing dismissal is without prejudice to any claim which plaintiff may have under state law”. We then granted plaintiff’s renewed motion for reargument and set the case down for argument (59 NY2d 840).

Inasmuch as it has now been made clear that the Federal dismissal did not include the State law cause of action, it was error to have granted defendant Merrill Lynch’s motion to dismiss on the ground of res judicata.

There remains, however, the question whether it was also error for the Appellate Division on its own to grant the motion to dismiss on the alternative ground that the complaint fails to state a cause of action under State law. This issue was not addressed by the majority of our court on the initial appeal to us.

*689We now conclude that it was error for the Appellate Division to have considered this as a ground for the motion to dismiss. Merrill Lynch’s motion was expressly based on the res judicata contention, now found to be without merit. No mention was made of dismissal for failure to state a cause of action and its assertion that this ground must be deemed to have been embraced in the prayer for “other and further relief” is unavailing.

Inasmuch as the motion to dismiss was not predicated on a claimed failure to state a cause of action plaintiff was never afforded an opportunity to seek leave to replead within the prescriptions of CPLR 3211 (subd [e]). Deprivation of that opportunity worked substantial prejudice to her. It was, therefore, error on the part of the Appellate Division to have granted the motion on the alternative ground.

The defense of failure to state a cause of action is not lost, however, by failure to include this ground in the motion under 3211 (CPLR 3211, subd [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 (Rich v Lefkovits, 56 NY2d 276, 281-282).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Upon reargument, order reversed, with costs, and the order of Supreme Court, Westchester County, denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise a defense of failure to state a cause of action.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.