Zucco v. Antin

257 A.D.2d 421, 682 N.Y.S.2d 354, 1999 N.Y. App. Div. LEXIS 207

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered April 1, 1998, which denied defendant-appellant’s motion to dismiss the complaint for lack of jurisdiction due to improper service of process and granted plaintiffs cross motion to dismiss appellant’s affirmative defense of lack of jurisdiction, unanimously affirmed, without costs.

The affirmative defense of lack of jurisdiction due to improper service was properly dismissed as waived for failure to move on such defense within 60 days of service of the answer that first asserted it (CPLR 3211 [e]). We reject appellant’s argument that the 60-day period was restarted upon his service of an amended answer as of right to an amended complaint that plaintiff served within the 60-day period (cf., Addesso v Shemtob, 70 NY2d 689). Concur—Rosenberger, J. P., Williams, Mazzarelli and Saxe, JJ.