Kukulka v. Millard Fillmore Suburban Hospital

106 A.D.2d 886, 483 N.Y.S.2d 507, 1984 N.Y. App. Div. LEXIS 21799

Opinion

Order unanimously reversed, on the law, without costs, and motion denied. Memorandum: Plaintiff delivered a summons and complaint to the Erie County Sheriff pursuant to CPLR 203 (subd [b], par 5) two days before the Statute of Limitations was to run. The Sheriff served the summons and complaint upon defendant’s former employer within the 60-day extension period. Defendant, however, was never personally served. Thereafter, defendant interposed an answer generally denying the allegations of plaintiff’s complaint. Defendant subsequently claimed in an amended answer that the action was time barred and in a second amended answer alleged that plaintiff lacked personal jurisdiction. Inasmuch as defendant waived his jurisdictional objection by failing to raise the issue either in a preanswer motion or in his original answer (CPLR 320, 3211, subd [e]; DeAngelis v Friedman, 46 AD2d 66; Wahrhaftig v Space Design Group, 29 AD2d 699), defendant also forfeited the Statute of Limitations defense, since timely service of the summons and complaint commenced the action (Keary v Great Atlantic & Pacific Tea Co., 96 AD2d 499). (Appeal from order of Supreme Court, Erie County, Bayger, J. — medical malpractice.) Present — Doerr, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.