Geiser v. Geiser

79 A.D.2d 571, 434 N.Y.S.2d 25, 1980 N.Y. App. Div. LEXIS 13893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1980
• Status: Published

Opinion

Judgment of the Supreme Court, New York County, entered May 15,1980, Which granted defendant’s motion to dismiss pursuant to CPLR 3211 (subd [a], pars 1, 2,5,1) and dismissed the complaint, reversed, on the law, without costs, the motion to dismiss denied, the complaint reinstated, and defendant is directed to answer the complaint within 20 days of determination of this appeal, without prejudice to any summary judgment motion defendant may wish to make. The application to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 2, 5, 7) was the second motion made for the same relief. Under this section, subdivision (e), we find the specific provision “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted.” The record discloses that a motion seeking the same relief was made at Special Term before Justice Blyn, who ordered a reference on certain issues on August 20, 1979 and thereafter, on February 1, 1980, denied the defendant’s initial motion, made under CPLR 3211 (subd [a], pars 1,2,8). Defendant then was specifically directed to serve his answer within 10 days of service of a copy of the order. Defendant, however, did not do so. Defendant’s second motion, which flouted the clear procedural statute and judicial directive, should not have been rewarded by anything other than summary rejection (see Weinstein-Korn-Miller, NY Civ Prac, par 3211.01). Concur—Birns, Sullivan, Silverman and Bloom, JJ.; Kupferman, J. P., dissents and would affirm on the opinion of Shainswit, J.