The following e-filed documents, listed by NYSCEF document number (Motion 004) 49, 50, 51, 52, 53, 54, 55, 56 were read on this motion to/for REARGUMENT/RECONSIDERATION. DECISION + ORDER ON MOTION Upon the foregoing documents, plaintiff Jason Almodovar (“Plaintiff”) moves, pursuant to CPLR §2221(d), to reargue this court’s orders dated April 25, 2025 and May 15, 2024, pursuant to Judiciary Law §21, to vacate the April 24, 2023 order, or, in the alternative, pursuant to CPLR §3025(b) to amend the complaint. Defendant the City of New York (the “City”) opposes on behalf of all defendants (together, “Defendants”). For the reasons set forth herein, the motion to reargue is granted, and upon reargument, the court modifies the decision and order dated April 25, 2025 to reflect that the dismissal was with prejudice, and the court adheres to the remainder of the decision dated April 25, 2025 and to the May 15, 2024 order in its entirety. BACKGROUND On January 31, 2023, Plaintiff, a former New York City Police Department (“NYPD”) officer, commenced this action by filing a summons and complaint, which interposed causes of action for religious discrimination and failure to engage in a cooperative dialogue under the New York City Human Rights Law (“NYCHRL”), declaratory judgment, violation of the Free Exercise Clause of the First Amendment, breach of contract-constructive wrongful termination, and aiding, abetting, and coercing under the NYCHRL (NYSCEF Doc No. 1). On April 7, 2023, the City moved pursuant to CPLR §3211(a)(7) to dismiss the complaint it its entirety. Oral argument for the motion was held on October 17, 2023 before Justice Judy H. Kim. On February 5, 2023, the case and motion were administratively reassigned to the undersigned. On April 25, 2024, the motion was granted by a decision and order of this court, and the complaint was dismissed in its entirety for failure to state a cause of action and because Plaintiff’s claims are time-barred (NYSCEF Doc No. 26, decision and order at 3-4). The City served a notice of entry of the decision on the same date. Four days later, on April 29, 2024, Plaintiff filed an amended complaint without leave of court. By letter application filed on May 15, 2024, the City moved the court to dismiss the amended complaint with prejudice (NYSCEF Doc No. 43). By a letter of the same date, Plaintiff opposed the application, citing to Roam Capital, Inc. v. Asia Alternatives, Mgmt. (194 AD3d 585 [1st Dept 2021]), for the proposition that a plaintiff is permitted under CPLR §3025 to file an amended complaint within ten days after a motion to dismiss is granted (NYSCEF Doc No. 44). By order dated May 15, 2023, this court ordered that the amended complaint “is deemed a nullity, as there is no procedural vehicle under the CPLR or any other authority by which a party may file an amended complaint, without leave of court, after dismissal of the complaint on a motion pursuant to CPLR §3211(a)” (NYSCEF Doc No. 45). Plaintiff now moves pursuant to CPLR §2221(d) to reargue the April 25, 2025 and May 15, 2024 orders, pursuant to Judiciary Law §21 to vacate the April 24, 2023 order, or, in the alternative, pursuant to CPLR §3025(b) to amend the complaint. In support of the motion, Plaintiff argues that the court’s April 25, 2024 decision and order violated Judiciary Law §21, that the amended complaint was permitted under CPLR §3025, or, in the alternative, Plaintiff seeks to amend now pursuant to CPLR §3025. The City opposes and argues that this court had authority to grant the motion to dismiss and the CPLR does not permit Plaintiff to file an amended complaint as of right or with leave of court after a dismissal pursuant to CPLR §3211(a) and (b). DISCUSSION A motion to reargue pursuant to CPLR §2221 may be made in connection with “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (CPLR §2221 [d][2]). Plaintiff moves to reargue on the grounds that the court has “overlooked and misapplied a fundamental legal question: Can a judge who did not hear the oral arguments on a motion decide that motion?” (NYSCEF Doc No. 50, affirmation in opposition 4). In support of this position, Plaintiff first asserts that this court’s April 25, 2024 decision and order was issued in violation of Judiciary Law §21. Judiciary Law §21 provides that “[a] judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.” Addressing the applicability of Judiciary Law §21, the Court of Appeals has held that this provision does not prohibit a successive judge from deciding a pending motion that raises purely legal questions (People v. Hampton, 21 NY3d 277, 283 [2013]; Marti v. Rana, 173 AD3d 576, 577 [1st Dept 2019]["Although Judiciary Law §21 provides that a Supreme Court Justice 'shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,' reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question"]; Weiss v. City of New York, 277 AD2d 36, 37 [1st Dept 2000][Judiciary Law §21 "does not prohibit such a Judge from deciding such a matter where, as here, purely legal questions are at issue, all relevant argument is preserved in the record, and the Judge is not required to weigh conflicting testimony or assess credibility"]). On a motion to dismiss brought under CPLR §3211 (a)(7), the court must “accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994][citations omitted]). This standard “limits [the court] to an examination of the pleadings to determine whether they state a cause of action” (Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d 342, 351 [2013]). Thus, the court’s determination on a motion to dismiss pursuant to CPLR §3211(a)(7) for failure to state a cause of action is, by definition, a determination of a purely legal question — whether the complaint sufficiently states a cause of action.1 Moreover, no testimonial evidence was offered or considered on the motion to dismiss in this case and the oral argument was recorded by a court reporter (NYSCEF Doc No. 46). Therefore, this court was not barred by Judiciary Law §21 from deciding the motion to dismiss. Plaintiff next argues that the court lacked authority to issue the April 25, 2024 and May 15, 2024 orders because the amended complaint was permitted as of right under CPLR §3025. In relevant part, CPLR §3025 provides that “[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it” (CPLR §3025[a]). Where, as here, a defendant files a pre-answer motion, the time to file a responsive pleading is automatically extended until ten (10) days after the movant is served with notice of entry of an order that disposes the motion (CPLR §3211[f]). Thus, when a motion to dismiss is denied or only granted in part, the defendant has ten days to answer the complaint (id.). But when a complaint is dismissed in its entirety, the defendant’s time to file a responsive pleading is cut off. A defendant simply cannot answer a complaint that has been dismissed. Therefore, the time to amend as of right has also expired (CPLR §3025[a]). Plaintiff cites to the Appellate Division, First Department, decision in Roam Capital, Inc. v. Asia Alternatives Mgmt. (194 AD3d 585 [1st Dept 2021]) for the proposition that “when a pre-answer motion to dismiss is granted, the complaining party has ten days to file an amended complaint without leave of the Court” (NYSCEF Doc No. 44, Wagner letter at 1). However, Roam Capital is distinguishable from this case. In Roam Capital, the plaintiff filed a motion seeking leave to amend the complaint while a motion to dismiss was also pending. The court denied the motion to amend and granted the motion to dismiss the original complaint. The Appellate Division, First Department, reversed the trial court’s decision, holding as follows: [T]he motion court improvidently exercised its discretion by denying leave to amend…Since a motion to dismiss extends the defendant’s time to answer the complaint “until ten days after service of notice of entry of the order” deciding the motion (CPLR §3211[f]), and since the court had not yet even decided defendant’s CPLR §3211 motion at the time plaintiff moved to amend its complaint, plaintiff did not need to move pursuant to CPLR §3025(b); instead, it could have amended as of right pursuant to CPLR §3025(a). (Roam Capital, 194 AD3d at 585 [emphasis added][internal citations omitted]).2 Roam Capital is distinguishable because the amended complaint in that case was filed before the court issued a decision on the motion to dismiss. The time to file a responsive complaint had not yet expired because the motion to dismiss was still pending. Here, the amended complaint was filed after the court issued a decision that dismissed the complaint in its entirety and after the City served a copy of the notice of entry and decision on Plaintiff (NYSCEF Doc No. 26, decision and order at 3-4 ["Plaintiff commenced this action on January 31, 2023, over eight-months after the NYPD's denial on May 18, 2022, and as such is now time-barred."]). The complaint had already been dismissed, the Defendants were no longer permitted to file a responsive pleading, the decision did not grant Plaintiff leave to replead, and Plaintiff was no longer permitted to amend as of right. Moreover, Plaintiff’s complaint was dismissed for failure to state a cause of action and because Plaintiff’s claims are time-barred. A dismissal based on expiration of the statute of limitations is a decision “on the merits” and with prejudice (De Crosta v. A. Reynolds Const. & Supply Corp., 41 NY2d 1100, 1101 [1977]). Given these conditions, Plaintiff was not permitted to file an amended complaint under any condition.3 Hence, the purported amended complaint was a nullity (see Kazakhstan Inv. Fund Ltd. v. Manolovici, 2 AD3d 249, 250 [1st Dept 2003]["Plaintiff's motion to amend its complaint was properly denied since its complaint had been dismissed on a prior motion as time-barred and there was, accordingly, nothing left before the court to amend"]). Accordingly, it is ORDERED that the motion for leave to reargue the motion to dismiss is granted; and it is further ORDERED that, upon reargument, the court’s decision dated April 25, 2024 is amended to reflect that the complaint is dismissed with prejudice; and it is further ORDERED that the court adheres to the remainder of its decision dated April 25, 2024 and adheres to its order dated May 15, 2024 in its entirety. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 9, 2024
