This decision is worth reading a few times over. CPLR 3211(e) had this language in it (I took this quote from the decision):
"Where a motion is made on the ground set forth in paragraph seven of
subdivision (a), or on the ground that a defense is not stated, if the
opposing party desires leave to plead again in the event the motion is
granted, he shall so state in his opposing papers and may set forth
evidence that could properly be considered on a motion for summary
judgment in support of a new pleading; leave to plead again shall not
be granted unless the court is satisfied that the opposing party has
good ground to support his cause of action or defense; the court may
require the party seeking leave to plead again to submit evidence to
justify the granting of such leave."
In 2005, it was amended, taking out that provision, but leaving the motion to replead intact, confusing everybody. This decision attempts to make sense of the change and implores the legislature to do something about the confusion.
CPLR R. 3211 Motion to dismiss
Janssen v Incorporated Vil. of Rockville Ctr., 2008 NY Slip Op 09962 (App. Div., 2nd)
On the instant appeal, we consider, inter alia, the issue of whether a
motion for leave to replead, pursuant to the current version of CPLR
3211(e), is subject to any time limitation. In 2005, the Legislature
amended CPLR 3211(e). Although this amendment did not prescribe any
time limitation within which a party may move for leave to replead, the
defendants invite this Court to "fill the temporal gap" and impose a
30-day limitation, akin to a motion for leave to reargue pursuant to
CPLR 2221(d)(3). For the reasons that follow, we decline the
defendants' invitation. We will not partake in judicial legislation by
creating a time limitation where none is present in the statute.…In 2005, the Chief Administrative Judge, upon the recommendation of
his Advisory Committee on Civil Practice, introduced a bill to amend
CPLR 3211(e) with regard to motions for leave to replead to remedy the
conflict between the statute and Rovello. As additional explanation, the drafters stated:"Further, the requirement of [the former] rule 3211(e)
that a pleader request leave to replead in the opposing papers, if
enforced literally, creates a trap for the unwary. This requirement,
which has no analogue in Federal practice and is buried deep in one of
the longest paragraphs in the CPLR, has been overlooked in a
substantial number of cases, and has recently caused courts to struggle
to read into an apparent absolute provision an ability to relieve
pleaders of their omission of the request for leave to replead. (See, e.g. Sanders v Schiffer, 39 NY2d 727, 729, and compare Bardere v Zafir, 63 NY2d 850, 853)."Our
Advisory Committee believes that the present wording of [the former]
rule 3211(e) causes unnecessary litigation expense and complexity
without any countervailing benefit, and invites the inadvertent
jeopardizing of a litigant's rights if counsel is unaware of the
requirement to request leave to replead. In the case of a pro se
pleader, he or she is almost certain to be unaware of this requirement.
Thus, we urge that it be repealed. Moreover, we recommend that rule
3211(e) be [*8]conformed to the Rovello doctrine."(2005 NY Legis Ann, ch 616, at 358).
Consistent therewith, CPLR 3211(e) was amended (see L 2005,
ch 616). This amendment is applicable to actions, such as the instant
matter, commenced after January 1, 2006. Simply stated, the amended
version of CPLR 3211(e) eliminated the three requirements previously
noted.The amended version was intended and served to remedy problems
inherent in the prior version. However, as noted by several
commentators, the amendment left "a number of questions unanswered"
(Weinstein-Korn- Miller, NY Civ Prac, ¶ 3211.32 [2d ed]; see 56 Syracuse L Rev. 527, 538).…
First, did the Legislature, in amending the subject statute, in effect,
eliminate a motion for leave to replead? A reading of the amended
version of CPLR 3211(e) reveals that the language pertaining to a
motion for leave to replead was removed from the body of that statute.
The only mention of a motion for leave to replead appears in the
statutory heading or title which expressly references "motions to plead
over." Inasmuch as there is no indication in the legislative history to
suggest that the Legislature intended to abrogate or do away altogether
with a motion for leave to replead, this Court will not presume such an
intent. Accordingly, for the present time, a motion for leave to
replead remains a useful and necessary component of a practioners'
arsenal in the context of civil litigation.Second, what standard should now be applied on a motion for leave to
replead? With regard to this question, we hold that the standard to be
applied on a motion for leave to replead pursuant to CPLR 3211(e) is
consistent with the standard governing motions for leave to amend
pursuant to CPLR 3025. Namely, motions for leave to amend pleadings
should be freely granted absent prejudice or surprise to the opposing
party, unless the proposed amendment is devoid of merit or palpably
insufficient (see Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Shovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120; Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017; Lucido v Mancuso, 49 AD3d 220, 229; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d 436, 437; Trataros Constr., Inc. v New York Hous. Auth., 34 AD3d 451, 452-453; Glaser v County of Orange, 20 AD3d 506).