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Nimkoff Rosenfeld & Schechter, LLP v. O'Flaherty

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 18, 2010

NIMKOFF ROSENFELD & SCHECHTER, LLP, FORMERLY KNOWN AS SCHECHTER & NIMKOFF, LLP, PLAINTIFF-RESPONDENT,
v.
KEVIN P. O'FLAHERTY, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 23, 2009, which denied defendants' motion to dismiss the complaint, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam, RomÁn, JJ.

601556/08

Plaintiff's failure to plead at the outset that the dispute over counsel fees and disbursements was not covered by the Fee Dispute Resolution Program (see 22 NYCRR 136.1[b][2],[6]) is not a jurisdictional defect precluding it from serving an amended complaint (see Kerner & Kerner v Dunham, 46 AD3d 372 [2007]). Therefore, plaintiff had the right to amend its complaint during the pendency of defendants' motion to dismiss (CPLR 3025[a]; see Johnson v Spence, 286 AD2d 481, 483 [2001]). It is well settled that an amended complaint supersedes the original complaint, thus rendering without legal effect the defective earlier pleading (see Chalasani v Neuman, 64 NY2d 879 [1985]; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100318

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