![]() " This court afforded the defendant the opportunity to adjourn the motion to submit opposition so the issue could properly be addressed and, in response, defendant indicated that he " no opposition to the motion to dismiss a pleading that has been amended" and expressly consented to the dismissal of the counterclaims as originally pleaded. At oral argument, defendant's counsel claimed that the Amended Answer had the effect of "moot out the motion to dismiss. Defendant did not serve written opposition to the motion. On July 28, 2010, counsel appeared for oral argument on the motion to dismiss the defendant's counterclaims. In e-mail correspondence between the attorneys on July 20, 2010, defendant's counsel indicated that pursuant to CPLR 3025(a), defendant had the right to amend its answer as the "motion to dismiss is a pleading responding to Answer with Counterclaims, giving us 20 days for the service of your motion to dismiss to make an amendment." Plaintiff's counsel responded that he disagreed and was "considering unopposed at th time." Two days before the adjourned date of the motion, on July 26, 2010, plaintiff mailed a letter rejecting the Amended Answer noting that "he time for defendant to serve an amended answer as of right ha expired." ![]() Prior to the return date on the motion, on July 20, 2010, defendant's counsel e-mailed and mailed an amended verified answer with counterclaims ("Amended Answer") to plaintiff's counsel. On June 30, plaintiff served a notice of motion to dismiss the defendant's counterclaims pursuant to CPLR 3211(a)(7) for failure to state a cause of action, made returnable on July 23, 2010. On June 10, 2010, defendant served a verified answer with counterclaims ("Answer"), which was accepted. On April 8, 2010, plaintiff and defendant entered a stipulation to extend defendant's time to answer the complaint until June 1, 2010. Plaintiff commenced this action by filing a verified complaint on Januand it was served upon the defendant on March 12, 2010. Plaintiff moves to strike defendant's amended answer with counterclaims claiming it was not timely filed pursuant to CPLR 3025(b) and for the award of costs and attorney's fees associated with this motion and sanctions pursuant to 22 NYCRR 130-1.1. ![]() This opinion is uncorrected and subject to revision before publication in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
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