BRITT v. Grace Manor Health Care Facility, Inc., David J. Gentner, Mary Stephan, Kathy Randall, and Tiffany Matthews, Defendants-Respondents.  (Appeal No. 2.) (2008)

 Plaintiff and the original coplaintiff, now plaintiff's decedent, commenced this action to recover damages for the alleged wrongful removal of decedent from her home and her unlawful confinement.   We agree with plaintiff that Supreme Court erred in granting the motion of defendants-respondents (defendants) to dismiss the complaint against them on the ground of improper service of process.   Defendants waived their objection to service of process by failing to move to dismiss the complaint on that ground within 60 days after serving their answer setting forth an objection to service of process, and defendants failed to demonstrate undue hardship to justify an extension of their time to move for dismissal of the complaint on that ground (see CPLR 3211[e];  Woleben v. Sutaria, 34 A.D.3d 1295, 825 N.Y.S.2d 860;  Vandemark v. Jaeger, 267 A.D.2d 672, 699 N.Y.S.2d 522).  “We consider plaintiff's contention despite the fact that it is raised for the first time on appeal inasmuch as defendants could not have opposed that contention by factual showings or legal countersteps before [the court]” (Edwards v. Siegel, Kelleher & Kahn, 26 A.D.3d 789, 790, 811 N.Y.S.2d 828 [internal quotation marks omitted] ).   Finally, we reject defendants' alternative ground for affirmance, for the reasons stated in our decision in Britt v. Buffalo Mun. Hous. Auth., 43 A.D.3d 1443, 843 N.Y.S.2d 890.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law with costs, the motion is denied, and the complaint against defendants Grace Manor Health Care Facility, Inc., David J. Gentner, Mary Stephan, Kathy Randall, and Tiffany Matthews is reinstated.

MEMORANDUM: