Venditti v. Town of Alden

239 A.D.2d 910, 659 N.Y.S.2d 628, 1997 N.Y. App. Div. LEXIS 6273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1997
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Len Rospierski and Susan M. Onisk (defendants) to dismiss the complaint. The record establishes that in November 1992 plaintiffs filed a request for judicial intervention and purchased an index number in an action entitled "Matter of Venditti v County of Erie.” The judicial intervention sought was an order granting leave to serve and file a late notice of claim. That motion was denied by order dated February 9, 1993. On February 18, 1993, plaintiffs filed a summons and complaint in this action under the index number obtained in November 1992. Because plaintiffs failed to pay a filing fee and secure an index number for the new action, the action was never properly commenced against defendants (see, CPLR 306-a; Matter of Gershel v Porr, 89 NY2d 327, 332; Matter of Vetrone v Mackin, 216 AD2d 839, 841). To the extent that our holding in Matter of Miner Co. v Lone Wolf Insulation (219 AD2d 831) is to the contrary, it is no longer to be followed. Nevertheless, dismissal is not warranted. Defendants failed to object to the defective filing either in their answer or in a timely motion to dismiss and thus waived this issue (see, Matter of Fry v Village of Tarry town, 89 NY2d 714). (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Dismiss Complaint.) Present—Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.