Bardere v. Zafir
| Decision Date | 11 October 1984 |
| Citation | 63 N.Y.2d 850,482 N.Y.S.2d 261,472 N.E.2d 37 |
| Parties | , 472 N.E.2d 37 Steven BARDERE, Appellant, v. Arthur ZAFIR et al., Respondents, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 102 A.D.2d 422, 477 N.Y.S.2d 131, should be affirmed, with costs.
On appeal by defendants Zafir and Brooklyn Garbage Bag Co. from an order of Special Term which had denied their motion under CPLR 3211 to dismiss the complaint for failure to state a cause of action and as barred by the Workers' Compensation Law, plaintiff, for the first time, asked in the Appellate Division that if the order of Special Term were reversed and the motion were granted he be given leave to replead to set out a theory of successor liability under Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934. We agree with the parties that, in reversing the order of Special Term and dismissing the complaint, the Appellate Division implicitly denied plaintiff's application.
We find no basis for reversal of that disposition. The court examined plaintiff's papers submitted in opposition to the motion and found missing therefrom allegations of any one of the four circumstances which will support a claim of successor liability under Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 464 N.Y.S.2d 437, 451 N.E.2d 195. Additionally, plaintiff failed to comply with the requirement of CPLR 3211 (subd. ) that, if the party opposing a motion to dismiss for insufficiency desires leave to plead again in the event the motion is granted, he shall set forth and support a request for such relief in his opposing papers. In order to reverse the implicit refusal by the Appellate Division of leave to replead to plaintiff we would have to say that plaintiff's papers, as a matter of law, necessarily satisfied that court that there was good ground to support a theory of successor liability (CPLR 3211, subd. ) and, further, that the appellate court was required (again as a matter of law) to excuse compliance with the statutory mandate of inclusion of a request to replead in the opposing papers. We can do neither.
Plaintiff's reliance on Sanders v. Schiffer, 39 N.Y.2d 727, 384 N.Y.S.2d 769, 349 N.E.2d 869 in support of his request that we authorize application by him to Special Term for leave to serve an...
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...the Workers’ Compensation Law." Bardere v. Zafir, 102 A.D.2d 422, 423, 477 N.Y.S.2d 131, 133 (1st Dep't 1984), aff'd, 63 N.Y.2d 850, 482 N.Y.S.2d 261, 472 N.E.2d 37 (1984) ; see Caballero v. First Albany Corp., 237 A.D.2d 800, 803, 654 N.Y.S.2d 866, 869 (3rd Dep't 1997) (" Labor Law § 200 d......
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