Ultramar Energy Ltd. v. Chase Manhattan Bank, N.A. , 599 N.Y.S.2d 816 ( 1993 )

Asch, J.

(dissenting). Defendant, Chase Manhattan Bank, N.A., previously moved, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the amended complaint herein. The prior order of the Supreme Court, which granted that motion by dismissing plaintiff’s two causes of action against the bank for unjust enrichment and tortious interference with contract, was modified by this Court to reinstate plaintiff’s cause of action for unjust enrichment (179 AD2d 592).

Instead of answering, defendant Chase made this second motion pursuant to CPLR 3211 (a) (1) and (7) for dismissal.

However, CPLR 3211 (e) provides in pertinent part that ”[a]t 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” (emphasis added).

As Professor Siegel notes, the requirement for a single CPLR 3211 motion before answer "has both procedural and administrative missions. It is designed to protect the pleader from being harassed by repeated CPLR 3211 (a) motions and to spare the court’s motion calendars the burden of a CPLR 3211 motion more than once in the same case.” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:55, at 75-76.)

Therefore, the order of the Supreme Court denying the motion of defendant Chase to dismiss the third cause of action of the amended complaint pursuant to CPLR 3211 (a) (1) and (7), should be affirmed since the motion is forbidden by the express language of CPLR 3211 (e).

Defendant is not foreclosed from raising its contentions in another form (see, McLearn v Cowen & Co., 60 NY2d 686, 689).

Kupferman and Ross, JJ., concur with Sullivan, J. P.; Asch and Kassal, JJ., dissent in a separate opinion by Asch, J.

Order, Supreme Court, New York County, entered April 7, 1992, reversed, on the law, with costs and disbursements, and the motion granted.