CLARKE v. DAVIS (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

Wayne CLARKE, Plaintiff-Appellant, v. Charles L. DAVIS, Defendant-Respondent. (Appeal No. 1.)

Decided: November 13, 2000

PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER and LAWTON, JJ.

Wayne Clarke, for plaintiff-appellant. Charles L. Davis, Buffalo, for defendant-respondent.

Although the complaint was subject to dismissal based on plaintiff's failure to comply with CPLR 304, defendant failed to object to the defective filing either in his initial answer or in his cross motion to dismiss. Thus, Supreme Court erred in sua sponte dismissing the complaint on that ground (see, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 723, 658 N.Y.S.2d 205, 680 N.E.2d 578; Venditti v. Town of Alden, 239 A.D.2d 910, 659 N.Y.S.2d 628). The court also erred in determining that the complaint was subject to dismissal based on plaintiff's failure to comply with the requirement in CPLR former 306-b(a) concerning the filing of proof of service. By appearing in the action before the time period provided in former 306-b(a) expired and failing to raise an objection in his answer, defendant has waived his objection to the filing requirement (see, Nardi v. Hirsh, 250 A.D.2d 361, 363, 672 N.Y.S.2d 334).

Judgment unanimously reversed on the law without costs and complaint reinstated.

MEMORANDUM:

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