Swift v. New York Medical College

Feb 19, 2008
Versions:48 A.D.3d 671
850 N.Y.S.2d 906

In an action, inter alia, to recover damages for breach of an employment contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), dated March 20, 2007, which granted the defendant‘s motion, in effect, pursuant to CPLR 3211 (a) to dismiss the third cause of action and that portion of the first cause of action which relates to the plaintiff‘s salary reduction during his employment at New York Medical College.

Ordered that the order is reversed, on the law, with costs, and the defendant‘s motion, in effect, pursuant to CPLR 3211 (a) to dismiss the third cause of action and that portion of the first cause of action which relates to the plaintiff‘s salary reduction during his employment at New York Medical College is denied.

Contrary to the defendant‘s contention, service of an amended complaint containing no new causes of action, but merely restating and renumbering 5 of the plaintiff‘s original 12 causes of action, did not provide the defendant with a basis for circumventing the single motion rule (see B.S.L. One Owners Corp. v Key Intl. Mfg., 225 AD2d 643 [1996]; CPLR 3211 [e]). Thus, the defendant‘s motion should have been denied as procedurally barred.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Spolzino, J.P., Miller, Dillon and McCarthy, JJ., concur.