Sirkis v. Cohen

23 A.D.3d 369, 805 N.Y.S.2d 550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for intentional infliction of emotional distress, the defendants Brooklyn Sawdust Construction, Inc., Israel Berkovic, Levi Berkovic, and Raizy Berkovic appeal from an order of the Supreme Court, Kings County (Jones, J.), dated June 16, 2004, which granted the plaintiffs’ motion to “restore” the action to active status.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiffs’ motion to “restore” the action to active status (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414 [2004]; Baez v Kayantas, 298 AD2d 416 [2002]; cf. Murray v Smith Corp., 296 AD2d 445, 446 [2002]). Contrary to the contention of the defendants Brooklyn Sawdust Construction, Inc., Israel Berkovic, Levi Berkovic, and Raizy Berkovic (hereinafter the defendants), they waived their objection to the plaintiffs’ filing of a summons with notice that did not comply with CPLR 305 (b) by appearing in the action, answering the complaint, and litigating the merits of the action without raising this objection (see Matter of Fry v Village of Tarrytown, 89 NY2d 714, 720-721 [1997]; Allianz Ins. Co. v City of New York, 19 AD3d 159, 160 [2005]; Livingston v Wagi, 284 AD2d 378 [2001]; cf. Parker v Mack, 61 NY2d 114, 117-118 [1984]).

The defendants’ remaining contentions are without merit. Florio, J.P., Crane, Mastro and Rivera, JJ., concur.