Ramos v. City of New York

• Decision Date: 13 May 2008
• Docket Number: 2007-03808.
• Citation: 51 A.D.3d 753,858 N.Y.S.2d 702,2008 NY Slip Op 04488
• Parties: HILDA RAMOS, Appellant, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

51 A.D.3d 753

858 N.Y.S.2d 702

2008 NY Slip Op 04488

HILDA RAMOS, Appellant, v. CITY OF NEW YORK et al., Respondents.

2007-03808.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 13, 2008.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), entered April 10, 2007, which, upon an order of the same court dated May 12, 2005, granting that branch of the defendants' motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7), dismissed the complaint.

Ordered that the judgment is reversed, on the law, with costs, the branch of the defendants' motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7) is denied, the complaint is reinstated, and the order dated May 12, 2005, is modified accordingly.

The plaintiff, a bus matron on a privately-operated school bus for special education students, was attacked by one of the students and allegedly injured. On or about January 25, 2001, she commenced this personal injury action against the Board of Education of the City of New York and the City of New York. The parties conducted discovery and the plaintiff filed the note of issue on May 1, 2003.

In 2004 the defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) and/or for summary judgment pursuant to CPLR 3212. In an order entered July 2, 2004, the Supreme Court, Kings County (Partnow, J.), stated, in toto: "[u]pon oral argument the City & Board of Education's motion for summary judgment is denied as untimely."

Approximately nine months later, the matter was transferred to another justice for trial and a jury was impaneled. On the day that trial was to begin, the defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). They submitted papers to the court identical to those submitted on the prior motion, except for the name of the attorney and the date. The Supreme Court granted the motion and judgment was entered dismissing the complaint. The plaintiff appeals.

The single motion rule prohibits parties from making successive motions to dismiss a pleading (see CPLR 3211 [e]; Held v Kaufman, 91 NY2d 425, 430 [1998]; Klein v Gutman, 12 AD3d 417, 419 [2004]; B.S.L. One Owners Corp. v Key Intl. Mfg., 225 AD2d 643, 644 [1996]). Therefore, although a motion based on the ground that the complaint fails to state a cause of action may be raised at any time, a party may not make a second motion pursuant to CPLR 3211 based on that ground, but must raise the ground "in another form" (McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]; see CPLR 3211 [e]).

The defendants contend that the order entered July 2, 2004, did not determine that branch of its previous motion which sought dismissal of the complaint pursuant to CPLR 3211 (a) (7), since it merely stated that the motion for summary judgment was denied as untimely. They argue that this branch of the motion therefore was still pending and could be properly determined by the trial court. However, under the circumstances of this case, the defendants waived that argument and their motion before the trial court was therefore precluded pursuant to the single motion rule.

In the approximately nine months between the order entered July 2, 2004, and the date that trial was to begin, the defendants never raised the argument before the hearing court that the CPLR 3211 branch of their motion was still pending. They never moved for leave to reargue that branch of their motion (see CPLR 2221). They also never moved to compel the determination of that branch of the motion (see CPLR 2219 [a]; cf. Matter of DeGrijze v Velcarrio, 228 AD2d 500 [1996]), or brought a proceeding to compel such determination (see Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; Matter of Law Offs. of Russell I. Marnell, P.C. v Blydenburgh, 26 AD3d 495 [2006]). Instead, the defendants only raised the issue...