Perez v. Wegman Companies, Inc.

Order insofar as appealed from unanimously reversed on the law without costs and plaintiff’s cross motion granted. Memorandum: The court erred in refusing to compel defendant to accept service of plaintiff’s amended complaint. The court had issued an order granting defendant’s motion to dismiss (CPLR 3211 [a] [7]) with respect to plaintiff’s first two causes of action, but the order provided that "defendant’s motion relative to the third and fourth causes of action of the complaint is held in abeyance until such time as disclosure proceedings have been conducted and plaintiff submits amended pleadings, without prejudice to the defendant to make proper motions related thereto.” As long as defendant’s motion to dismiss was pending, plaintiff could amend her complaint as of right pursuant to CPLR 3025 (a) and 3211 (f) (see, Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799; Taylor v Haddad Corp., 118 Misc 2d 253, 255-256; Lipary v Posner, 96 Misc 2d 578; Siegel, 1988 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1990 Supp Pamph, CPLR C3211:65, at 8). Defendant’s argument that plaintiff’s application was not properly before the trial court is unpreserved. (Appeal from order of Supreme Court, Erie County, Doyle, J.—dismiss causes of action.) Present—Dillon, P. J., Denman, Pine, Law-ton and Davis, JJ.