Lewis v. Manhattan & Bronx Surface Transit Operating Authority

209 A.D.2d 366, 619 N.Y.S.2d 557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1994
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered August 9, 1993, which denied defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.

Defendant Authority waived its right to seek dismissal of the action on the ground that plaintiff did not appear at an oral examination demanded pursuant to Public Authorities Law § 1212 (5), not having raised such ground as an affirmative defense in its answer, but instead asserting it for the first time on a motion to dismiss made three years after commencement of the action, after discovery had been completed and the case calendared for trial (see, Hoffman v New York City Hous. Auth., 187 AD2d 334, 338). Concur—Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.