Elgerabli v Allen
Attorneys and Parties
Brief Summary
Defamation and anti-SLAPP motion practice; timing and priority of motions to dismiss under New York Civil Practice Law and Rules (CPLR) 3211 [pre-answer motion to dismiss; subdivision (a)(1) dismissal based on documentary evidence; (a)(7) failure to state a cause of action; (g) requires the court to grant preference in hearing anti-SLAPP motions].
Granted vacatur of defendant’s default and leave to serve a late answer (noting the cross-motion was considered without opposition); denied defendant’s CPLR 3211 motion to dismiss without prejudice to renewal after an answer.
The denial without prejudice of the CPLR 3211 motion to dismiss; the matter was remitted for a merits determination of that branch of the cross-motion.
Because a CPLR 3211(a)(1) motion must be made and decided before a responsive pleading is served, and CPLR 3211(g) motions must be given preference; the Supreme Court erred by denying the motion without reaching the merits and by conditioning renewal on service of an answer.
Background
Plaintiff Sophia Elgerabli filed a defamation action against, among others, Livingston Allen on July 12, 2022 (Index No. 714384/22). After Allen failed to appear or answer, plaintiff moved in November 2022 for a default judgment. In January 2023, Allen opposed and cross-moved to vacate his default, for leave to serve a late answer, and to dismiss under CPLR 3211(a)(1) and (7) and (g). The Supreme Court (Queens County) granted vacatur and leave to answer, stating the cross-motion was considered without opposition, and denied the CPLR 3211 dismissal branch without prejudice to renewal after an answer. Plaintiff appealed, and Allen cross-appealed.
Lower Court Decision
The Supreme Court granted defendant Allen’s cross-motion to vacate his default in appearing or answering and permitted a late answer, noting the application was unopposed. It denied, without prejudice to renewal post-answer, Allen’s motion to dismiss brought under CPLR 3211(a)(1) and (7) and (g).
Appellate Division Reversal
The Appellate Division dismissed plaintiff’s appeal because no appeal lies from an order entered on the appealing party’s default. On Allen’s cross-appeal, the court reversed the denial without prejudice of the CPLR 3211 motion and remitted for a merits determination of the CPLR 3211(a)(1), (a)(7), and (g) branch, emphasizing that (a)(1) must be made and decided pre-answer and that (g) motions must be given hearing preference. One bill of costs was awarded to Allen.
Legal Significance
Reinforces that CPLR 3211(a)(1) motions are to be adjudicated before service of an answer and that CPLR 3211(g) anti-SLAPP motions receive preferential scheduling. A trial court errs by deferring such motions until after an answer. Also reaffirms that an appeal does not lie from an order entered upon the appellant’s default.
In defamation and anti-SLAPP cases, courts must reach the merits of CPLR 3211(a)(1) and (g) motions before an answer and give them preference; they cannot be denied simply to await an answer. Appeals from orders entered on a party’s default will be dismissed.