Dimond v. Verdon

5 A.D.3d 718, 773 N.Y.S.2d 603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 23, 2003, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

The defendants raised the affirmative defense of lack of personal jurisdiction in their answer. Almost three months after serving their answer, the defendants moved to dismiss the complaint on the ground that the summons and complaint were not properly served. Having failed to move to dismiss on that ground within 60 days after serving their answer, the defendants waived that defense (see CPLR 3211 [e]; Gillespie v Perrone, 276 AD2d 526 [2000]; Amerasia Bank v Saiko Enters., 263 AD2d 519, 520 [1999]; Alaska Seaboard Partners v Anninos, 259 AD2d 572 [1999]; DeSena v HIP Hosp., 258 AD2d 555 [1999]). The purported rejection of the defendants’ answer did not extend the 60-day time limit. Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.