Opinion
December 29, 1983
Appeal from the order of the Supreme Court, New York County (Richard Lee Price, J.), entered November 22, 1982, insofar as it denied appellant's motion brought, pursuant to CPLR 3211 (subd [a]), to dismiss the second cause of action in the first amended complaint for failure to state a cause of action, dismissed as moot, without costs.
Subsequent to the denial of defendant-appellant's motion to dismiss, the plaintiff served a second amended complaint, and a motion has been made by the defendant to dismiss the second amended complaint, and this motion is presently pending before Special Term. An amended pleading, when served, takes the place of the original pleading. ( Branower Son v. Waldes, 173 App. Div. 676.) Thus, the appeal from the order based on the first amended complaint pleading, is rendered academic. ( Mattsson v. Johns-Manville Prods. Corp., 78 A.D.2d 793; Abrams v. Community Servs., 76 A.D.2d 765.)
Concur — Murphy, P.J., Kupferman, Sandler, Milonas and Alexander, JJ.