Estate of Garcia v. Thomas

Appellate Division of the Supreme Court of New York

Estate of Garcia v. Thomas

257 A.D.2d 644, 682 N.Y.S.2d 629, 1999 N.Y. App. Div. LEXIS 622

Appellate Division of the Supreme Court of the State of New York·Decided January 25, 1999·Published

Opinion

—In an action to recover damages for personal injuries and wrongful death, the [645] plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated December 3, 1997, as granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants’ defense of improper service was waived since they failed to move to dismiss the complaint based on this defense within 60 days of January 1, 1997, the effective date of chapter 501 of the Laws of 1996 amending CPLR 3211 (e). Accordingly, the Supreme Court should have denied the defendants’ motion to dismiss based on CPLR 3211 (a) (8) (see, Wade v Byung Yang Kim, 250 AD2d 323; Fleet Bank v Riese, 247 AD2d 276). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.

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—In an action to recover damages for personal injuries and wrongful death, the [645] plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated December 3, 1997, as granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants’ defense of improper service was waived since they failed to move to dismiss the complaint based on this defense within 60 days of January 1, 1997, the effective date of chapter 501 of the Laws of 1996 amending CPLR 3211 (e). Accordingly, the Supreme Court should have denied the defendants’ motion to dismiss based on CPLR 3211 (a) (8) (see, Wade v Byung Yang Kim, 250 AD2d 323; Fleet Bank v Riese, 247 AD2d 276). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.

Estate of Garcia v. Thomas, 257 A.D.2d 644, 682 N.Y.S.2d 629, 1999 N.Y. App. Div. LEXIS 622 (N.Y. Ct. App. 1999).

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