Lai Har Chin v. Yard

40 A.D.3d 590, 833 N.Y.S.2d 405

Opinion

In an action to recover damages for

personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated September 14, 2006, as denied his motion to dismiss the complaint pursuant to CFLR 3012 (b).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant waived late service of the complaint by accepting and retaining the complaint, without objection, before moving to dismiss the complaint pursuant to CPLR 3012 (b) approximately eight months later (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]; Chiulli v Coyne, 210 AD2d 450 [1994]; Myers v Empire State Bldg., 53 AD2d 662, 663 [1976]). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion to dismiss. Mastro, J.P., Ritter, Skelos, Garni and McCarthy, JJ., concur.