By notice of motion filed on June 27, 2011, defendant Progressive Insurance (hereafter "Progressive") moves under motion sequence four, for an order: (a) dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(1) & (7) and 3216; (b) granting summary judgment on liability in its favor pursuant to CPLR 3212; (c) granting it leave to file an amended answer nunc pro tuncpursuant to CPLR 3025; and, (d) for such other and further relief as the court may deem just and proper.

Plaintiff has not submitted written opposition to Progressive's motion.

Co-defendant Charles Worthington (hereafter "Worthington") has not appeared.

BACKGROUND

On or about December 31, 2009, plaintiff, representing herself without counsel, [*2]filed a summons and verified complaint with the Kings County Clerk's Office. By notice of appearance and verified answer dated February 22, 2010, Progressive answered the complaint.

Thereafter, plaintiff served Progressive an amended complaint dated March 6, 2010. Plaintiff's amended complaint alleges the following salient facts. On April 22, 2009, plaintiff sustained damages caused by defendant Worthington when he negligently struck the rear of plaintiff's automobile. Plaintiff claims that Progressive was the automobile liability insurer of Worthington and the vehicle in question. Plaintiff filed a claim with Progressive to recover damages caused by the accident which Progressive denied in bad faith.

By verified answer to the amended complaint dated June 22, 2011, Progressive joined issue. A note of issue has not been filed.

MOTION PAPERS

Progressive's motion papers consist of a notice of motion and an attorney's affirmation annexed to which are six exhibits labeled A through F. Exhibit A is a copy of Progressive's prior application dated June 29, 2010, for the same relief requested here. Annexed to exhibit A are the exhibits originally attached to Progressive's previous application, including plaintiff's summons and complaint, Progressive's answer, a police report pertaining to the alleged accident, the insurance policy in question, a document purportedly evidencing the electronic application for said policy, a credit card tracking report purportedly evidencing payment for said policy after the occurrence of the alleged accident, an apparent amended complaint dated March 6, 2010, a preliminary conference order and various discovery demands by Progressive. Exhibit B consists of a copy of this courts order denying Progressive's previous application. Exhibit C is a document purportedly evidencing that the plaintiff's amended complaint was never filed with the clerk of the court. Exhibit D consists of a notice of appearance and answer dated June 22, 2011, in response to the amended complaint. Exhibit E consists of a copy of the Shreveport, Louisiana police report pertaining to the alleged accident. Exhibit F consists of documents allegedly pertaining to previous civil actions prosecuted by the plaintiff.

APPLICABLE LAW

CPLR 3211(a)(1) warrants dismissal of an action if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). CPLR 3211(a)(7) states, "Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: ... (7) the pleading fails to state a cause of action..." "On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (Nonnon v. City of New York, 9 NY3d 825, 827 [2009]; citing, Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). [*3]

The Appellate Division, Second Department, reasoned in Sokol v. Leader, 74 AD3d 1180, 904 N.Y.S.2d 153, [2d 2010]), that:

On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party. "CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal."... Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint," and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.'... Thus, a plaintiff "will not be penalized because he has not made an evidentiary showing in support of his complaint." (Id. at 1181. [internal citations omitted]).The Court in Sokol further reasoned, that:

[A] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]). If the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one."... Yet, affidavits submitted by a defendant "will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action."... Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." (Id. at 1181-1182. [internal citiations omitted]).

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d at 324).

CPLR 3025 (a) provides that a party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.

CPLR 3216 provides as follows: Want of prosecution. (a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms. Unless the order specifies otherwise, [*4]the dismissal is not on the merits. (b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: (1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue; (3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.

DISCUSSION

By decision and order dated November 18, 2010, this court denied Progressive's prior cross-motion (sequence number three) to dismiss the complaint because Progressive did not adequately explain the relief it sought. There is no dispute that by answer dated February 22, 2010, Progressive answered plaintiff's original complaint. Thereafter, plaintiff served an amended complaint dated March 6, 2010. Progressive did not state a position on the validity of the amended complaint and did not state whether it had answered the amended complaint. Although Progressive had apparently answered the amended complaint when it filed the prior cross-motion, Progressive did not attach the amended answer to its prior cross-motion. The court was therefore left to guess whether issue was joined for purposes of considering Progressive's summary judgment motion pursuant to CPLR 3212, among other issues.

In an apparent effort to respond to the ambiguities raised in the court's decision and order dated November 18, 2010, Progressive has made the instant motion and has taken the position that the amended complaint is defective pursuant to CPLR 2102 because it has not been filed with the clerk of the court and because Progressive has not consented to simplify the court proceedings pursuant to CPLR 3035. For these stated reasons, among others, Progressive now seeks dismissal of both the complaint and the amended complaint.

As a threshold issue, the court notes that an amended complaint, once served, replaces the initial complaint and becomes the only complaint in the case as though the initial complaint was never served (Elegante Leasing, Ltd. v. Cross Trans Svc, Inc., 11 AD3d 650 [2d 2004] see also Titus v. Titus, 275 AD2d 409 [2d 2010] ). Progressive has attached to the instant motion its answer to the amended complaint dated June 22, 2011. The fact that Progressive has answered the amended complaint without taking any affirmative steps to reject it constitutes a waiver of plaintiff's amendment of the original complaint (Nassau County v. Cedric Const. Corp., 100 AD2d 890 (2d 1984). Therefore, there is no need to address Progressive's motion to dismiss the original complaint because it has been replaced by the amended complaint. Furthermore, Progressive's motion to [*5]dismiss the amended complaint pursuant to CPLR 2102 must be denied because Progressive waived this alleged defect by answering the amended complaint.

Progressive has also sought leave to further amend its answer nunc pro tunc pursuant to CPLR 3025. Inasmuch as Progressive is seeking leave of the court for this relief, the court presumes without deciding, that court leave is required. Progressive, however, did not annex a copy of its proposed amended answer as required (see Loehner v. Simmons, 224 AD2d 591[2d 1996]; see also Manzi Homes, Inc. v. Pierzchanowski, 13 Misc 3d 1216(A) [NY Sup. 2006]). Therefore, this branch of the motion is denied without prejudice.

Progressive also seeks dismissal of the complaint based on plaintiff's failure to prosecute the action and failure to provide discovery. CPLR 3216 pertains to the failure to prosecute and CPLR 3126 pertains to penalties for refusal to comply with discovery.

On the claim of lack of prosecution, Progressive did not demonstrate that it served a written demand on the plaintiff to serve and file a note of issue within ninety days as required by CPLR 3126. Therefore, this branch of its motion is denied without prejudice.

Part 202 of the Uniform Rules for the New York State Trial Courts (22 N.Y.C.R.R) at 202.7(a) provides in pertinent part as follows:

a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless they have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion ...

Part 202 of the Uniform Court Rules, requires that a party seeking sanctions based on a disclosure violation submit an affirmation of counsel detailing the efforts made to resolve the disclosure disputes raised in the instant motion. Progressive did not comply with this court rule. Therefore, this branch of its motion is denied without prejudice.

Defendant also moves to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) and pursuant to CPLR 3212. A motion to dismiss based on documentary evidence will be granted only if documentary evidence resolves all factual issues as matter of law, and conclusively disposes of plaintiff's claim (see Fontanetta v. Doe, 73 AD3d 78 [2d 2010]). To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the movant must show that the complaint fails to state a claim for which relief may be granted.

Plaintiff's complaint alleges that on April 12, 2009, Worthington, Progressive's insured, negligently drove his vehicle and struck the rear of plaintiff's automobile causing damages. Plaintiff filed a claim for said damage which Progressive allegedly denied in bad faith.

There exist no common law cause of action permitting an individual injured by a tortfeaser to bring a direct action against the tortfeaser's liability insurer. Such an action [*6]exists only in the context of a claim brought pursuant to Insurance Law § 3420 (See, Lang v. Hanover Ins. Co., 3 NY3d 350, 352 [2004]). In order for an injured plaintiff to sue a tortfeasor's insurance company pursuant to Insurance Law § 3420, the plaintiff must first obtain a judgment against the insured. The action may then be maintained following a 30-day waiting period after service upon the insurer of the judgment with notice of entry, assuming the insurer does not satisfy the judgment in the interim (see Lang v. Hanover Ins. Co., 3 NY3d 350 [2004]; see also Insurance Law §3420[a][2]). "Once the statutory prerequisites are met, the injured party steps into the shoes of the tortfeasor and can assert any right of the tortfeasor-insured against the insurance company" (Lang v. Hanover Ins. Co., 3 NY3d at 355).

Plaintiff has not alleged in the complaint or otherwise demonstrated that plaintiff has obtained a judgment against Worthington, based on the subject automobile accident. Therefore, the complaint does not state a cognizable claim against Progressive. In light of the foregoing, there is no need to address Progressive's motion to dismiss the complaint pursuant to CPLR 3212, nor is there any need to address Progressive's claim that Worthington did not obtain insurance from Progressive until after the accident occurred.

CONCLUSION

Progressive motion to dismiss the complaint pursuant to CPLR 3211(a)(1), 3216; and/or 3126 is denied.

Progressive motion to amend its answer pursuant to CPLR 3025 is denied.

Progressive motion to dismiss the complaint pursuant to CPLR 3212 is moot.

Progressive motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action is granted.

The foregoing constitutes the decision and order of this court.

Enter:November 18, 2011________________________________

J.S.C.

Enter Forthwith:________________________________

J.S.C.