Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered December 11, 2007. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant's motion arguing that since this was defendant's second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant's motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e) (see Curtis v Chetrit, 243 AD2d 423 [1997]; Breiterman v Haidt, 4 Misc 3d 130[A], 2004 NY Slip Op 50683[U] [App Term, 1st Dept 2004]). Plaintiff's remaining contention is not preserved for appellate review.

Accordingly, the order granting defendant's motion to dismiss the complaint is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009