Metott v. Syncro Machine Co.

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

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.