Isolabella v. Sapir

96 A.D.3d 427, 945 N.Y.S.2d 309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2012
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Emily Jane Goodman, J.), entered November 14, 2011, which denied defendants’ motions for leave to file an untimely motion for summary judgment dismissing the complaint and for summary judgment dismissing the complaint on the ground that they did not consent to being added as party defendants and plaintiff did not obtain leave of the court to add them, unanimously affirmed, without costs.

Defendants failed to demonstrate the requisite good cause for making a late motion for summary judgment (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). They claim the affirmative defenses of improper joinder (CPLR 1003) and plaintiffs failure to obtain leave to add them as new party defendants (CPLR 3025), but they waived these defenses by substantially participating in the amended action for two years before (belatedly and untimely) serving an answer that included the defenses. In any event, in a stipulation executed by all parties appearing in the action, defendants, through their in-house counsel, “consented” to service of the amended complaint upon them. They have not shown that their in-house counsel lacked the authority to consent to the amended complaint and their joinder on their behalf. Concur — Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.