The following papers and the attachments and exhibits thereto have been read on this motion:

Notice of Motion1

Memorandum of Law in Support2

Memorandum of Law in Opposition3

Memorandum of Law in Opposition4

Memorandum of Law in Reply5

The Plaintiff, JJM Sunrise Automotive, LLC d/b/a Lynbrook Audi ("JJM"), moves for an order pursuant to CPR 2221 seeking leave to reargue: that branch of the underlying motion of Defendant Volkswagen Group of America , Inc., d/b/a Audi of America, Inc. ("Audi") seeking dismissal of the first cause of action in JJM's complaint; and JJM's "request to re-plead under CPLR 3211(e)", both of which were resolved in a decision and order of this court dated November 6, 2014.

For the reasons that follow, the court denies JJM's motion seeking leave to reargue except for the branch of the motion "request[ing] to replead under CPLR 3211(e)", which is granted, and, upon reargument, the court adheres to its original determination.

As a preliminary matter, the instant motion failed to conform with the requirements of CPLR 2214(c) and the rules of the Supreme Court in Nassau County.

CPLR 2214(c) reads (emphasis added):

Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system . . . . Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.

Here, JJM failed to include with the instant motion the underlying motion papers and the [*2]decision and order rendered on the underlying motions. JJM also failed to refer to the underlying motion papers and decision and order by giving the docket numbers on the e-filing system.

In addition, whenever any paper is filed in the Supreme Court of Nassau County that has a judge assigned at the time of filing (as in the case at bar), the filer receives a notice both in an e-mail and on the confirmation screen after filing. The notice states, in relevant part, as follows:

The judge assigned to this case requires working copies for:

MOTION DOCUMENTS - SCAR PETITIONS - AND TAX CERTIORARI JUDGMENTS ONLY

Print out a Confirmation Notice and attach to the back facing out of the e-filed document. Working hard copies of motion documents must include TABS and copies of any e-filed documents referenced by docket No. in the motion (emphasis added).

Inasmuch as JJM failed to submit working copies of e-filed documents with the instant motion, and failed to comply with CPLR 2214(c), JJM's motion to reargue is procedurally defective.

Notwithstanding, as an exercise of discretion, the court grants reargument but only with respect to JJM's "request to re-plead under CPLR 3211(e)" (CPLR 2001). Upon reargument the court concludes that it did not overlook or misapprehend the relevant facts, nor did it misapply any controlling principle of law (see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2d Dept 2010]).

The court notes the last paragraph of JJM's attorney's affirmation in opposition to the motions to dismiss, wherein JJM asked that, "in the unlikely event" the court dismisses any portion of the complaint, "JJM requests leave to replead the allegations in the Complaint pursuant to NY CPLR 3211(e)". In the underlying order, the court denied JJM's request inasmuch as the informal repleading afforded under CPLR 3211(e) was repealed, effective January 1, 2006.

The former version of CPLR 3211(e) contained the following language not contained in the current CPLR 3211(e):

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 [*3]leave to plead again to submit evidence to justify the granting of such leave.^[FN1]

JJM argues that the court erred in denying its informal request to re-plead pursuant to CPLR 3211(e) because the 2006 amendment "simply removed the requirement that a plaintiff expressly request leave to re-plead in its opposition to a CPLR 3211(a)(7) motion" and that the 2006 amendment actually made it easier to replead under CPLR 3211(e) (Memorandum of Law in Support at p 12).

In Janssen v Incorporated Vil. of Rockville Ctr. (59 AD3d 15 [2d Dept 2008]), the Second Department discussed the impact of the 2006 amendment and concluded that while the amended version of CPLR 3211(e) eliminated the three requirements in the prior statute,^[FN2] it nevertheless "left a number of questions unanswered'" (Id. at 26, 27-28 [citations omitted]):^[FN3]

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. . . . 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 practitioner's 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.

Based on the foregoing, this court concludes that a motion for leave to replead is recognized by the Second Department as an appropriate tool to remedy a defective pleading. Additionally, the standard to be applied on a motion for leave to replead' is the same as that applied for a motion to amend pursuant to CPLR 3025(b).

Here, there was neither a "motion for leave to replead" nor a proposed pleading subject to review by the court to ascertain whether it is devoid of merit or palpably improper (CPLR 3025[b] ["Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading"]; Barone v Concert Service Specialists, Inc., 127 AD3d 1119 [2d Dept 2015] [Supreme Court providently exercised its discretion in denying cross motion for leave to amend complaint where plaintiffs failed to submit a proposed amended complaint with their cross motion as required by CPLR 3025(b)]).

Accordingly, the court adheres to its original determination that JJM's "request" to replead, contained in its opposing affirmation in the underlying motion, is denied.

This constitutes the decision and order of the court.