Design Strategy Corp. v. Spicehandler

Design Strategy Corp. v Spicehandler (2004 NY Slip Op 50137(U)) [*1]Decided on March 11, 2004

DESIGN STRATEGY CORP. and NETWORK INTEGRATION SERVICES, INC., Plaintiffs,  against ELLIOT SPICEHANDLER, Defendant.

Index No. 602542/03



Plaintiffs were represented by The Dweck Law Firm, LLP, 230 Park
Avenue, New York, New York 10169-0124, (212) 687-8200, Jack S.
Dweck, Esq., of counsel.

Defendant was represented by the firm of Kudman Trachten LLP, 350
Fifth Avenue, Suite 4400, New York, New York 10118, (212) 868-
1010, Paul H. Aloe, Esq., of counsel.

Herman Cahn, J.

A motion to dismiss made pursuant to CPLR 3211, automatically extends the time to answer until ten days after decision of the motion, 3211 (f).

In the instant case, defendant interposed a motion to dismiss, CPLR 3211. However, while the motion was still sub-judice, defendant then served a counterclaim. Plaintiff now argues that the serving of the counterclaim effectively moots the motion to dismiss.

It seems clear that by serving the counterclaim, defendant effectively waived the CPLR 3211(f) stay. It cannot serve part of a responsive pleading, a counterclaim, while at the same time seeking the benefit of the automatic stay as to the other part. Therefore, defendant is directed to serve a verified answer within ten days after service of a copy of this order on its attorney.

From the examination of the motion papers, it is not clear under which branch of CPLR 3211 (a), dismissal is sought. Therefore, the motion is denied. If counsel believes it has grounds for dismissal as a matter of law, it may move for summary judgment, CPLR 3212.

The foregoing constitutes the decision and order of the court.

Dated: March 11, 2004

E N T E R : [*2]

J. S. C.

Decision Date: March 11, 2004