Metott v. Syncro Machine Co.

Appellate Division of the Supreme Court of New York

Metott v. Syncro Machine Co.

210 A.D.2d 897, 621 N.Y.S.2d 1015, 1994 N.Y. App. Div. LEXIS 13355

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1994

StatusPublished

This text of 210 A.D.2d 897 (Metott v. Syncro Machine Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Metott v. Syncro Machine Co., 210 A.D.2d 897, 621 N.Y.S.2d 1015, 1994 N.Y. App. Div. LEXIS 13355 (N.Y. Ct. App. 1994).

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Opinion

—Order unanimously affirmed with costs. Memorandum: Defendant Carlisle Corporation (Carlisle) appeals from an order denying its cross motion to dismiss the complaint. Carlisle contends that plaintiffs’ attempt to amend the complaint to add it as a defendant was improper. We agree with Carlisle that plaintiffs should have sought leave to add the party defendant. The failure of plaintiffs to do so, however, is not fatal. Carlisle waived the defect by failing to move promptly to dismiss the complaint for failure to comply with CPLR 1003 (see, Gavigan v Gavigan, 123 AD2d 823; Alexander, 1994 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:1, 1995 Pocket Part, at 184). (Appeal from Order of Supreme Court, Oneida County, Tenney, J.—Dismiss Complaint.) Present—Green, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

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—Order unanimously affirmed with costs. Memorandum: Defendant Carlisle Corporation (Carlisle) appeals from an order denying its cross motion to dismiss the complaint. Carlisle contends that plaintiffs’ attempt to amend the complaint to add it as a defendant was improper. We agree with Carlisle that plaintiffs should have sought leave to add the party defendant. The failure of plaintiffs to do so, however, is not fatal. Carlisle waived the defect by failing to move promptly to dismiss the complaint for failure to comply with CPLR 1003 (see, Gavigan v Gavigan, 123 AD2d 823; Alexander, 1994 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:1, 1995 Pocket Part, at 184). (Appeal from Order of Supreme Court, Oneida County, Tenney, J.—Dismiss Complaint.) Present—Green, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

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210 A.D.2d 897, 621 N.Y.S.2d 1015, 1994 N.Y. App. Div. LEXIS 13355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metott-v-syncro-machine-co-nyappdiv-1994.

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