A motion addressed to the sufficiency of an original complaint may not be circumvented by the service of an amended complaint (3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.07). The court may dismiss the original complaint if it finds the amended one sufficient or it can dismiss the motion addressed to the pleading that no longer exists (ibid.). Although Professor Siegel has expressed distaste for the latter approach (called “abatement” of the motion), he suggests that the court address the amended pleading (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:65, p 70). This approach is especially appropriate where defendant has obliged with a second CPLR 3211 (subd [a], par 7) motion attacking the amended complaint. And, the single-motion rule of CPLR 3211 (subd [e]) is not offended where, as here, the second motion raises the ground of CPLR 3211 (subd [a], par 7), because a motion on this ground may be made at any time (Siegel, op. cit., CPLR C321L55, p 59).
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