Rochester Poster Advertising Co. v. Town of Penfield

51 A.D.2d 870, 380 N.Y.S.2d 153, 1976 N.Y. App. Div. LEXIS 11490

Opinion

Order unanimously affirmed, with costs. Memorandum: Defendant appeals from an order of the Monroe County Supreme Court which permitted plaintiff to amend the complaint after the original pleading was dismissed pursuant to CPLR 3211 (subd [a]). Although at the time of defendant’s motion under CPLR 3211 (subd [a]), plaintiff did not request leave to replead as mandated by CPLR 3211 (subd [e]) that failure does not require reversal of the order (CPLR 3025, subd [b]; VanMinos v Merkley, 48 AD2d 281). Furthermore, while the court dismissed plaintiff’s original complaint "on the merits,” that dismissal does not constitute a final determination of the case, since on appeal from that decision, we specifically limited our affirmance of the dismissal to plaintiff’s failure to plead an essential element of the cause of action (Rochester Poster Advertising Co. v Town of PenSeld, 46 AD2d 726). Defendant’s argument that the action has become moot is without merit since the purpose behind plaintiff’s suit is to challenge the constitutionality of defendant’s ordinance. (Appeal from order of Monroe Supreme Court granting motion to amend complaint.) Present— Marsh, P. J., Moule, Simons, Mahoney and Goldman, JJ.