Keary v. Great Atlantic & Pacific Tea Co.

96 A.D.2d 499, 465 N.Y.S.2d 518, 1983 N.Y. App. Div. LEXIS 19005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 1983
• Status: Published

Opinion

— Order entered June 29, 1982 in Supreme Court, Bronx County (Alfred J. Callahan, J.) which, inter alia, confirmed the referee’s report and dismissed the action on the ground of the Statute of Limitations, unanimously reversed, upon the law, defendant’s motion to dismiss the action as barred by the Statute of Limitations is denied and plaintiff’s motion to strike that defense is granted, with costs. Plaintiff’s process server acted on February 6, 1981, two days before the Statute of Limitations ran out for this false imprisonment action. Since service of the summons commenced the action, the only bar to its viability must be the validity of the service. The referee found that service had not been properly made, and that defendant had preserved its defense on this ground by asserting it in its answer of August 10, 1981. However, when defendant served an amended answer three days later, the defense of lack of personal jurisdiction was omitted. Since the amended answer supersedes in all respects the previous pleading (Halmar Distrs. v Approved Mfg. Corp., 49 AD2d 841), defendant has waived the jurisdictional defense (CPLR 3211, subd [e]). Concur — Ross, J. P., Carro, Asch, Milonas and Kassal, JJ.