In Oakley v. County of Nassau, 127 AD3d 946, 946-947, 6 N.Y.S.3d 646 [2d Dept. 2015], a case on all fours, the Second Department reversed a trial court that entertained a second motion, holding that:
On or about May 22, 2012, the defendant interposed its answer. Thereafter, the defendant moved, inter alia, pursuant to CPLR 3211 (a) (10) to dismiss the complaint for failure to join a necessary party, and in an order dated September 12, 2013, the Supreme Court denied that branch of the motion.
On March 3, 2014, the defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. In opposition to the motion, the plaintiff contended that the defendant's motion violated the single-motion rule of CPLR 3211 (e).
The Supreme Court granted the defendant's motion, and the plaintiff appeals. Contrary to the Supreme Court's determination, the defendant was barred by the single-motion rule from making a second CPLR 3211 (a) motion.
The Second Department in that case also set forth the policy rationale for the rule: The purpose of the single-motion rule is not only to prevent delay before answer (see Held v. Kaufman, 91 NY2d 425, 430, 694 NE2d 430, 671 NYS2d 429 ), but also to "'protect the pleader from being harassed by repeated CPLR 3211 (a) motions" (Nassau Roofing & Sheet Metal Co. v. Celotex Corp., 74 AD2d 679, 680, 424 NYS2d 786 ) and to conserve judicial resources.
The defendant provided no reason for not including CPLR 3211 (a) (7) as an alternative basis for relief in its prior motion. Even though the defendant may not raise the defense of failure to state a cause of action in another CPLR 3211 (a) motion, "it may be later raised in another form," such as a summary judgment motion pursuant to CPLR 3212 (McLearn v. Cowen & Co., 60 N.Y.2d at 689). (Oakley, supra at 946-947.)