Clarke v. Davis

277 A.D.2d 902, 715 N.Y.S.2d 830

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously .reversed on the law without costs and complaint reinstated. Memorandum: Although the complaint was subject to dismissal based on plaintiff’s failure to comply with CPLR 304, defendant failed to object to the defective filing either in his initial answer or in his cross motion to dismiss. Thus, Supreme Court erred in sua sponte dismissing the complaint on that ground {see, Matter of Fry v Village of Tarrytown, 89 NY2d 714, 723; Venditti v Town ofAlden, 239 AD2d 910). The court also erred in determining that the complaint was subject to dismissal based on plaintiff’s failure to comply with the requirement in CPLR former 306-b (a) concerning the filing of proof of service. By appearing in the action before the time period provided in CPLR former 306-b (a) expired and failing to raise an objection in his answer, defendant has waived his objection to the filing requirement {see, Nardi v Hirsh, 250 AD2d 361, 363). (Appeal from Judgment of Supreme Court, Erie County, Howe, J.— Dismiss Pleading.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.