Hutchins v Palmer, 2019 NY Slip Op 07570 (2d Dept. 2019)
“Furthermore, the defendants’ motion could not be defeated or rendered academic by filing an amended pleading. “[A] motion to dismiss which is addressed to the merits may not be defeated by an amended pleading,” and a motion to dismiss an action as time-barred is clearly addressed to the merits (Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370; see Terrano v Fine, 17 AD3d 449). Thus, the plaintiffs ignored the defendants’ motion at their own peril.”
This is a case that needs to be understood. Most people believe that an amended complaint will end the motion to dismiss. Not necessarily.
