CPLR R. 3212 When and Why

A motion for summary judgment may be made after issue has been
joined based on CPLR 3211(a) grounds which have been asserted in the
answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Mann v Malasky, 41 AD3d 1136).
Accordingly, the appellant could move for summary judgment dismissing
the complaint insofar as asserted against her after she served her
answer, based upon the affirmative defense of failure to state a cause
of action (see CPLR 3211[a][7]; CPLR 3211[e]). Contrary to the
plaintiff's contention, the doctrine of the law of the case does not
apply, as the Supreme Court did not determine, on the merits, whether
the complaint stated valid causes of action on the previous motion
pursuant to CPLR 3211(a)(1) (see Kopsidas v Krokos, 18 AD3d 822; Gay v Farella, 5 AD3d 540).

…

The Supreme Court improvidently exercised its discretion in
granting that branch of the plaintiff's motion which was to preclude
certain testimony and evidence (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997; Assael v Metropolitan Tr. Auth., 4 AD3d 443), as the plaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742).

The Supreme Court providently exercised its discretion in
denying that branch of the appellant's cross motion which was to
disqualify the plaintiff's attorney, as the appellant failed to
establish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000; Bentvena v Edelman, 47 AD3d 651).