his house. 40 F.3d at 531. The officers stated that if the plaintiff cooperated they would keep the accusations out of the newspapers; read the accuser's statement to the plaintiff; loudly told the plaintiff that the statement was fact while slapping the paper loudly; told the plaintiff that if he did not work with the police it would be hard on the family; and falsely told the plaintiff that others had accused him of similar charges. Id. at 537. 27 . This claim was not made against Stephens in the Third Amended Complaint. "It is well established that a party cannot assert a claim for the first time in its motion papers.” Global Crossing Bandwidth, Inc. v. Locus Telecomm., Inc., 632 F.Supp.2d 224, 245 (W.D.N.Y.2009); see also Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.1998) (<HOLDING>). However, the Parties agreed at oral argument
holding that where incorrectly named defendant filed a motion to dismiss and an answer with affirmative defenses and actively participated in discovery it led the plaintiff to believe that the correct defendant had been sued and that the plaintiff was therefore entitled to amend its complaint to correct the misnomer holding that an argument raised for the first time in response to defendants motion to dismiss instead of in an amended complaint was not properly raised before the district court and would not be considered on appeal holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint holding plaintiffs reference to and attachment of franchise agreement excerpts in opposition to defendants motion did not convert motion to dismiss to motion for summary judgment because plaintiff did not introduce support for arguments beyond the allegations in the complaint holding that plaintiff failed to state a securities fraud claim based on a duty to correct since an alleged duly to correct did not appear anywhere in the amended complaint and did not enter the case until wright mentioned it for the first time in her opposition memoranda to the motion to dismiss