Opinion
May 1, 1989
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contentions, the Supreme Court properly determined that the defense of lack of in personam jurisdiction had been waived by virtue of the defendant's failure to interpose it in its answer or by way of a preanswer motion to dismiss (see, e.g., Addesso v Shemtob, 70 N.Y.2d 689, 690). Moreover, in denying that branch of the defendant's cross motion which was to dismiss the complaint for failure to state a cause of action based on lack of written notice of the allegedly dangerous condition resulting in the accident, the Supreme Court correctly found that Nassau County Administrative Code § 12-4.0 (e) should be construed in accord with Highway Law § 139(2), which allows for tort recovery based on constructive notice where written notice is lacking (see, Nodelman v L.C.V. Realty Corp., 143 A.D.2d 122; Carlino v City of Albany, 118 A.D.2d 928, lv denied 68 N.Y.2d 606). Viewing the allegations of the complaint as true and deeming the complaint "to allege whatever can be imputed from its statements by fair and reasonable intendment" (see, Pace v Perk, 81 A.D.2d 444, 449), the complaint may be properly construed as asserting that the county had constructive notice of the allegedly dangerous condition. Kooper, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.