McLearn v. Cowen & Co., 455 N.E.2d 1256 (NY 1983). · Go Syfert
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McLearn v. Cowen & Co., 455 N.E.2d 1256 (NY 1983). Cases Citing This Book View Copy Cite
72 citation events (27 in the last 25 years) across 9 distinct courts.
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Bailey v. Peerstate Equity Fund, L.P.
N.Y. App. Div. · 2015 · confidence medium
The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211 (a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211 (a) that are based on alternative grounds (see McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]; Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86, 88 [1993]; Reilly v Prentice, 141 AD2d 520, 520-521 [1988]).
discussed Cited as authority (rule) Bielby v. Middaugh
N.Y. App. Div. · 2014 · confidence medium
Dismissal of an action by a federal court, however, does not have res judicata effect when the federal court declines to exercise its pendent jurisdiction over related state law claims, or otherwise dismisses those claims without prejudice (see McLearn v Cowen & Co., 60 NY2d 686, 688 [1983]; Britt v Buffalo Mun.
discussed Cited as authority (rule) Bielby v. Middaugh
N.Y. App. Div. · 2014 · confidence medium
Dismissal of an action by a federal court, however, does not have res judicata effect when the federal court declines to exercise its pendent jurisdiction over related state law claims, or otherwise dismisses those claims without prejudice (see McLearn v Cowen & Co., 60 NY2d 686, 688 [1983]; Britt v Buffalo Mun.
discussed Cited as authority (rule) Britt v. Buffalo Municipal Housing Authority
N.Y. App. Div. · 2013 · confidence medium
Because the federal court did not exercise its pendent jurisdiction over the related state law claims, but instead dismissed those claims without prejudice, the ultimate dismissal of the federal action did not have res judicata effect with respect to the instant action (see McLearn v Cowen & Co., 60 NY2d 686, 688 [1983]; cf. Troy v Goord, 300 AD2d 1086, 1087 [2002]).
discussed Cited as authority (rule) Britt v. Buffalo Municipal Housing Authority
N.Y. App. Div. · 2013 · confidence medium
Because the federal court did not exercise its pendent jurisdiction over the related state law claims, but instead dismissed those claims without prejudice, the ultimate dismissal of the federal action did not have res judicata effect with respect to the instant action (see McLearn v Cowen & Co., 60 NY2d 686, 688 [1983]; cf. Troy v Goord, 300 AD2d 1086, 1087 [2002]).
discussed Cited as authority (rule) Miterko v. Peaslee
N.Y. App. Div. · 2011 · confidence medium
The appellant’s contention that the plaintiffs failed to state a cause of action insofar as asserted against it is raised for the first time on appeal and, thus, is not properly before this Court (see McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 849 [2008]; Resnick v Doukas, 261 AD2d 375, 376 [1999]).
discussed Cited as authority (rule) Ramos v. City of New York
N.Y. App. Div. · 2008 · confidence medium
Therefore, although a motion based on the ground that the complaint fails to state a cause of action may be raised at any time, a party may not make a second motion pursuant to CPLR 3211 based on that ground, but must raise the ground “in another form” (McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]; see CPLR 3211 [e]).
discussed Cited "see" Hurd v. Hurd
N.Y. App. Div. · 2009 · signal: see · confidence high
With respect to the merits of the appeal, we agree with plaintiff that the court erred in dismissing the complaint for failure to state a cause of action in the absence of a request by defendant for such relief (see Abinanti v Pascale, 41 AD3d 395, 396 [2007]; Grimes v Kaplin, 305 AD2d 1024 [2003]; Sena, 198 AD2d at 346 ; see generally McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]).
examined Cited "see" Bert Cattle Co., Inc. v. Warren (6×)
Neb. · 1991 · signal: see · confidence high
See, McLearn v. Cowen & Co., 60 N.Y.2d 686 , 455 N.E.2d 1256 , 468 N.Y.S.2d 461 (1983); Moravek v. Davenport Community Sch.
discussed Cited "see, e.g." Davenport v. Lumibao
N.Y. Sup. Ct., New York Cty. · 2026 · signal: see also · confidence medium
County, Mar. 15, 2022] [Kelley, J.]; Higgins v Goyer, 2018 NY Slip Op 33520[U] , *2, 2018 NY Misc LEXIS 9607 , *3 [Sup Ct, Rensselaer County, Nov. 1, 2018]; see also McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]).
discussed Cited "see, e.g." Guerra v. American Access Care Physician, PLLC
N.Y. Sup. Ct., New York Cty. · 2024 · signal: see also · confidence medium
County, Mar. 15, 2022] [Kelley, J.]; Higgins v Goyer, 2018 NY Slip Op 33520[U] , *2, 2018 NY Misc LEXIS 9607 , *3 [Sup Ct, Rensselaer County, Nov. 1, 2018]; see also McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]).
discussed Cited "see, e.g." Albany Engineering Corp. v. Hudson River/Black River Regulating District
N.Y. App. Div. · 2013 · signal: see also · confidence medium
Co., 36 AD3d 1120, 1121 [2007]; Healthcare Capital Mgt. v Abrahams, 300 AD2d 108, 109 [2002]; Vitale v Fowler Oil Co., 238 AD2d 794, 795 [1997]; see also McLearn v Cowen & Co., 60 NY2d 686, 688-689 [1983]; Zeldin v Interboro Mut.
discussed Cited "see, e.g." Albany Engineering Corp. v. Hudson River/Black River Regulating District
N.Y. App. Div. · 2013 · signal: see also · confidence medium
Co., 36 AD3d 1120, 1121 [2007]; Healthcare Capital Mgt. v Abrahams, 300 AD2d 108, 109 [2002]; Vitale v Fowler Oil Co., 238 AD2d 794, 795 [1997]; see also McLearn v Cowen & Co., 60 NY2d 686, 688-689 [1983]; Zeldin v Interboro Mut.
cited Cited "see, e.g." Van Hof v. Town of Warwick
N.Y. App. Div. · 1998 · signal: see also · confidence low
Co., 173 AD2d 400 ; see also, McLearn v Cowen & Co., 60 NY2d 686 ).
discussed Cited "see, e.g." Mohamed v. Exxon Corp. (2×)
Tex. App. · 1990 · signal: see also · confidence low
Dist., 97 Cal.App.3d 214 , 158 Cal.Rptr. 603, 613 (1979); Maldonado v. Flynn, 417 A.2d 378, 383-84 (Del.Ch.1980); see also McLearn v. Cowen & Co., 48 N.Y.2d 696 , 422 N.Y.S.2d 60, 61-62 , 397 N.E.2d 750, 751-52 (1979) (discussing the rule), rev’d on other grounds, 60 N.Y.2d 686 , 468 N.Y.
Retrieving the full opinion text from the archive…
Mildred A. McLearn
v.
Cowen & Co., and Merrill Lynch, Pierce, Fenner & Smith, Incorporated
New York Court of Appeals.
Sep 29, 1983.
455 N.E.2d 1256
APPEARANCES OF COUNSEL, Roy M. Cohn and John A. Kiser for appellant., Richard Conway Casey and Kent E. Daiber for respondent.
Cited by 55 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise the defense of failure to state a cause of action.

For a statement of the history of this appeal see 48 NY2d 696. Subsequent to that determination, plaintiff returned to the Federal courts for clarification of the District Court determination as to dismissal of her State law cause of action. Pending such clarification she moved for reargument in our court. We denied that motion without prejudice to renewal following clarification by the Federal courts (52 NY2d 896). On January 20, 1982, the Federal District Court amended its original order of dismissal to include the provision, “The foregoing dismissal is without prejudice to any claim which plaintiff may have under state law”. We then granted plaintiff’s renewed motion for reargument and set the case down for argument (59 NY2d 840).

Inasmuch as it has now been made clear that the Federal dismissal did not include the State law cause of action, it was error to have granted defendant Merrill Lynch’s motion to dismiss on the ground of res judicata.

There remains, however, the question whether it was also error for the Appellate Division on its own to grant the motion to dismiss on the alternative ground that the complaint fails to state a cause of action under State law. This issue was not addressed by the majority of our court on the initial appeal to us.

[*689] We now conclude that it was error for the Appellate Division to have considered this as a ground for the motion to dismiss. Merrill Lynch’s motion was expressly based on the res judicata contention, now found to be without merit. No mention was made of dismissal for failure to state a cause of action and its assertion that this ground must be deemed to have been embraced in the prayer for “other and further relief” is unavailing.

Inasmuch as the motion to dismiss was not predicated on a claimed failure to state a cause of action plaintiff was never afforded an opportunity to seek leave to replead within the prescriptions of CPLR 3211 (subd [e]). Deprivation of that opportunity worked substantial prejudice to her. It was, therefore, error on the part of the Appellate Division to have granted the motion on the alternative ground.

The defense of failure to state a cause of action is not lost, however, by failure to include this ground in the motion under 3211 (CPLR 3211, subd [e]). Although it may not be raised in another motion under that section (of which the statute permits only one) it may be later raised in another form (Rich v Lefkovits, 56 NY2d 276, 281-282).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Upon reargument, order reversed, with costs, and the order of Supreme Court, Westchester County, denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise a defense of failure to state a cause of action.