Opinion
November 12, 1999
Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Pleading.
PRESENT: GREEN, J. P., LAWTON, WISNER, HURLBUTT AND BALIO, JJ.
Order unanimously affirmed without costs.
Memorandum: Supreme Court properly granted the motion of defendant-third-party plaintiff, Pak-Mor Manufacturing Company (Pak-Mor), seeking dismissal of the cross claim of defendant Truckmobile Equipment Corp. and the counterclaim of third-party defendant, Town of Niagara (Town).
We reject plaintiff's contention that Pak-Mor previously moved to dismiss the complaint for lack of personal jurisdiction and thus that the subject motion is barred by the single motion rule set forth in CPLR 3211 (e). That rule does not apply where a second motion is directed to a different pleading (see, Nassau Roofing Sheet Metal Co. v. Celotex Corp., 74 A.D.2d 679, 680). We also reject plaintiff's contention that Pak-Mor waived the defense of lack of personal jurisdiction by failing to assert it in the reply to the Town's counterclaim.
The defense was included in the answer to the complaint that was properly served with the third-party complaint pursuant to CPLR 1007.