Pursuant to CPLR 3025 (a), "[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." However, under CPLR 3211 (f), "[s]ervice of a notice of motion under subdivision [3211] (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order."

A motion to dismiss extends the movant's time to answer and thus extends the time in which the opposing party may amend his pleading as of right (CPLR 3025 [a]; see Johnson v Spence, 286 AD2d 481, 483 [2d Dept 2001]; STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410 [1998]). Therefore, plaintiff's contention that defendant was required to move pursuant to CPLR 3025 (b) for leave to amend the answer is unavailing. However, courts have diverged on the effect of the service of an amended pleading upon a pending motion to dismiss. While some courts have held that the amended pleading resulted in the motion being abated, "[o]ther courts have held that the amended pleading should be included in [the] record on the pending motion, and that it should be granted or denied based on the sufficiency of the amended pleading" (5-3025 Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07; see Taylor v Haddad Corp., 118 Misc 2d 253, 256 [Sup Ct, Special Term, NY County 1983]; Matter of D'Addario v McNab, 73 Misc 2d 59, 62 [Sup Ct, Suffolk County 1973]).{**31 Misc 3d at 619}

In the Second Department, an amended complaint does not render a motion to dismiss [*4]academic and the moving party has the discretion as to whether the motion should be applied to the new pleading (see Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2d Dept 2003], citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998] [holding that an amended pleading does not automatically abate a motion to dismiss "that was addressed to the original pleading" and "that the moving party has the option to decide whether its motion should be applied to the new pleadings"] and Matter of D'Addario, 73 Misc 2d at 62 [holding that an amended complaint did not abate a pending motion to dismiss and the court could treat the motion to dismiss as directed to the amended complaint]; see also Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799, 801 [Sup Ct, Queens County 1988] [holding "the better rule is one which allows the moving party the option of withdrawing its motion or pressing it with regard to the amended pleading"]). This court concurs that the "better rule" is one that most expeditiously advances the litigation.

Accordingly, defendant's contention, that service of the amended answer obviated the need to oppose plaintiff's motion, is unavailing. Had defendant submitted a timely response to plaintiff's motion and included the amended answer in the papers, plaintiff would have had the option to withdraw the motion or pursue the motion as applied to the amended answer. Defendant's refusal to submit opposition to the motion prevented this court from addressing whether the amended answer had been properly served without leave and whether it corrected the alleged deficiencies in the answer and thus delayed the resolution of this matter. Defendant's counsel's contention, in e-mail correspondence to plaintiff's counsel prior to the original motion, that the "motion to dismiss is a pleading" was an ineffectual and incorrect statement as a motion to dismiss is clearly not a "pleading" pursuant to CPLR 3011 and did not relieve defendant of his duty to respond to the motion.

Plaintiff notified defendant's counsel on July 20, 2010, eight days before oral argument on the original motion, that plaintiff was choosing to pursue the motion. Prior to appearing for oral argument, defendant clearly investigated whether a motion to dismiss extended the defendant's time to amend the answer as defendant cited STS Mgt. at oral argument. While the STS Mgt. decision discusses the extension of the time to amend a{**31 Misc 3d at 620} pleading, it does not address the effect of service of an amended pleading while a motion to dismiss is pending. However, the Sholom decision, cited and relied upon in STS Mgt., does address this issue, holding that while courts have varied in handling this situation, "the better rule is one which allows the moving party the option of withdrawing its motion or pressing it with regard to the amended pleading" (Sholom, 138 Misc 2d at 801). The defendant's failure to submit the amended answer in response to plaintiff's original motion to dismiss prevented the plaintiff from exercising this option. Despite numerous indications from plaintiff's counsel that he was treating the motion as unopposed and would pursue the relief requested, more than a week before oral argument, and an additional opportunity offered by this court at oral argument to submit written opposition in support of its position, defendant refused to submit a written response to the motion, thereby [*5]deliberately preventing the plaintiff from choosing whether to pursue the motion as applied to the amended answer and necessitating additional motion practice. Such gamesmanship in litigation is found to be frivolous conduct as defined in Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) (2) as it was clearly undertaken merely to delay or prolong the resolution of the litigation. Not sure which answer would be found to be controlling of the litigation as a result of defendant's refusal to properly present the issues to the court for determination, plaintiff has been put to the additional expense of this second motion by defendant's conduct. Accordingly, pursuant to 22 NYCRR 130-1.1 (a), the court grants plaintiff's motion for the costs and reasonable attorney's fees incurred in having to bring this motion.

Plaintiff's current motion to strike does not seek dismissal of the amended answer pursuant to CPLR 3211 and does not claim any inadequacies in the amended answer. Presumably, therefore, plaintiff has determined that the amended answer cured the defects in the original pleading. Despite defendant's failure to properly respond to the original motion before this court, defendant was entitled to amend the answer with counterclaims without leave of the court pursuant to CPLR 3025 and 3211 (f) and his amended answer should not be stricken.

Accordingly, plaintiff's motion to strike defendant's amended answer is denied.{**31 Misc 3d at 621}

Plaintiff is to serve a responsive pleading to the amended answer and counterclaims within 10 days of the service of this order.

Plaintiff's motion for the costs and reasonable attorney's fees incurred in bringing this motion is granted pursuant to 22 NYCRR 130-1.1 (a). Plaintiff is directed to submit an order on notice including an attorney's affirmation containing proof of costs and reasonable attorney's fees within 30 days of service of this order.