CPLR R. 3211 Motion to dismiss
CPLR R. 3211(e) Motion to replead
For some much needed background on this procedural novelty read Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd). For the shorter, highlighted version, click HERE.
Clark v Pfizer, Inc., 2009 NY Slip Op 05743 (App. Div., 2nd, 2009)
The defendant correctly contends that the appeal from the order dated November 2, 2007, must be dismissed, inasmuch as the plaintiff failed to file a notice of appeal within 35 days after service upon him by mail of that order with notice of entry (see CPLR 2103[b][2]; 2103[c], 5513[a]; Matter of Wei v New York State Dept. of Motor Vehs., 56 AD3d 484, 485; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483).
Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, for leave to replead so as to assert a cause of action to recover damages for discrimination in the terms, privileges, and conditions of employment in violation of Executive Law [*2]§ 296. A motion for leave to replead, although now constituting little more than a "poor substitute" or "arcane alternative" to a motion for leave to amend a pleading under CPLR 3025(b) (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 19), is still cognizable and is not expressly "constrained by any time limitation" (id.). Nonetheless, in the matter before us, the proposed complaint, as sought to be repleaded, is palpably insufficient and patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227; see also Barnum v New York City Tr. Auth., 62 AD3d 736).
The bold is mine.
