Defendant next moved for a direction that plaintiff, pendente lite, pay use and occupancy, without prejudice, and for a dismissal of each cause of action of the amended complaint for insufficiency and of the first two causes on the claim that the new Loft Law is unconstitutional. The order to show cause bringing on this motion (No. 94 of Nov. 8,1982) ordered plaintiff to pay use and occupancy pending determination of the motion.
PROCEDURAL PROBLEMS
Defendant claims that service of an amended complaint should not circumvent the motion addressed to the sufficiency of the original complaint. Plaintiff argues that the amendment has cured the deficiencies claimed in defendant’s first motion. Moreover, plaintiff suggests that defendant’s second motion is mere afterthought constituting a belated attack on the first two causes of action which defendant ignored in its first motion. Since only one motion is allowed under CPLR 3211 (subd [a]) (CPLR 3211, subd [e]), plaintiff contends that defendant’s second motion is procedurally improper. Finally, neither party addresses the effect of the amendment on the already submitted motion for a preliminary injunction that had been brought under the original complaint.
For the reasons that follow, I hold that the motion for a preliminary injunction remains viable, the motion addressed to the sufficiency of the original complaint has been rendered moot, and the motion attacking the amended complaint is procedurally proper.