Wex Capital, Inc. v. Bakhchi

• Decision Date: 27 January 2022
• Docket Number: Index 657573/2019
• Citation: 2022 NY Slip Op 30313 (U)
• Parties: WEX CAPITAL, INC. F/K/A ALWEX, INC., Plaintiff, v. MARC BAKHCHI, MARC B. INC. Defendant. Motion Seq. No. 003
• Court: New York Supreme Court

2022 NY Slip Op 30313(U)

WEX CAPITAL, INC. F/K/A ALWEX, INC., Plaintiff,
v.
MARC BAKHCHI, MARC B. INC. Defendant.

Motion Seq. No. 003

Index No. 657573/2019

Supreme Court, New York County

January 27, 2022

Unpublished Opinion

PRESENT: HON. RICHARD LATIN Justice

DECISION + ORDER ON MOTION

RICHARD LATIN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion to/for DISMISS.

Upon the foregoing documents, it is ordered that defendants' motion to dismiss pursuant to CPLR 3211(a)(3), (5), and (7) is determined as follow:

Plaintiff commenced the instant action to recover for the alleged fraudulent misconduct of the defendant Marc Bakhchi when he was an insurance broker employed by the plaintiff from 2010 to 2018. Defendant Bakchi had previously moved to, inter alia, dismiss plaintiffs complaint pursuant CPLR 3211(a)(1), (4), (5), and 7. Defendant's motion to dismiss was denied by order dated May 19, 2021. In that same order, plaintiff was directed to serve supplemental pleadings naming Marc B. Inc. as an additional defendant solely to the extent that defendant Bakhchi argued that this was where the subject commissions were deposited. Thereafter, plaintiff filed and served a supplemental summons and amended complaint that enumerated the same two causes of action for a violation of NY GBL § 349 and fraud. The only discernable difference between the initial and supplemental pleading was that Marc B. Inc. was added as an additional party. After being served with the supplemental summons and amended complaint, defendants now move pursuant to CPLR 3211(a)(3), (5), and (7) to dismiss plaintiffs amended complaint.

1

Pursuant to CPLR 3211, a party may move to dismiss a pleading for any of the grounds listed in subdivision (a) before an answer is required, but it may only do so once (CPLR 3211[e]). This provision is commonly referred to as "the single motion rule." It is also well settled that once an amended complaint is served it becomes the only complaint in the action and supersedes the initial complaint (see Plaza PH2001 LLC v Plaza Residential Owner LP, 98 A.D.3d 89 [1st Dept 2012]). Therefore, as a general rule, there is no bar to a second motion to dismiss after a complaint has been amended (see Shelley v Shelley, 180 Misc.2d 275, 282 [Sup Ct, Westchester County 1999]).

However, where an amended complaint is essentially the same as the original pleading, courts have stopped defendants from escaping the scope of the single motion rule (see B.S.L. One Owners Corp. v Key Intern. Mfg., Inc., 225 A.D.2d 643 [2d Dept 1996]; Swift v New York Medical College, 48 A.D.3d 671 [2d Dept 2008]). Similarly, even after an amended complaint is submitted, where a defendant has already had "the opportunity to address the merits of...