Summary
In Kukulka v Millard Fillmore Suburban Hosp. (supra, 106 AD2d 886 [4th Dept]), the defendant did not raise the defense of lack of personal jurisdiction in the original answer or in the first amended answer, but only in the second amended answer.
Summary of this case from Harris v. State of NYOpinion
December 14, 1984
Appeal from the Supreme Court, Erie County, Bayger, J.
Present — Doerr, J.P., Denman, Boomer, O'Donnell and Schnepp, JJ.
Order unanimously reversed, on the law, without costs, and motion denied. Memorandum: Plaintiff delivered a summons and complaint to the Erie County Sheriff pursuant to CPLR 203 (subd [b], par 5) two days before the Statute of Limitations was to run. The Sheriff served the summons and complaint upon defendant's former employer within the 60-day extension period. Defendant, however, was never personally served. Thereafter, defendant interposed an answer generally denying the allegations of plaintiff's complaint. Defendant subsequently claimed in an amended answer that the action was time barred and in a second amended answer alleged that plaintiff lacked personal jurisdiction. Inasmuch as defendant waived his jurisdictional objection by failing to raise the issue either in a preanswer motion or in his original answer (CPLR 320, 3211, subd [e]; DeAngelis v. Friedman, 46 A.D.2d 66; Wahrhaftig v Space Design Group, 29 A.D.2d 699), defendant also forfeited the Statute of Limitations defense, since timely service of the summons and complaint commenced the action ( Keary v. Great Atlantic Pacific Tea Co., 96 A.D.2d 499).