Tung Fa Tu v. Barn Trailer Service, Inc.

196 A.D.2d 811, 602 N.Y.S.2d 558, 1993 N.Y. App. Div. LEXIS 8444

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 1993
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal from an order of the Supreme Court, Queens County (Smith, J.), dated June 5, 1991, which granted the motion of the third-party defendant Malerba’s Silver City Tire Company to dismiss the third-party complaints insofar as it is asserted against it.

Ordered that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, the motion is denied, and the third-party complaints are reinstated.

Having failed to make an appropriate preanswer motion, or raise the issue in its answers to the third-party complaints, Malerba’s Silver City Tire Company has waived its claim that there was no jurisdiction under either CPLR 301 or 302 (see, CPLR 3211 [e]; Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086; Hatch v Tu Thi Tran, 170 AD2d 649; Boswell v Jiminy Peak, 94 AD2d 782). Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.