Calabro, Fleishell & Lubov, P.C. v Levine
2003 NY Slip Op 51295(U)
Decided on October 1, 2003
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellate Term, First Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Pleading—Affirmative Defense

Decided on October 1, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM J. DAVIS, J.P.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570328/03

CALABRO, FLEISHELL & LUBOV, P.C., Plaintiff-Respondent,

against

ISAAC LEVINE,


[*2]Defendant-Appellant.

Defendant pro se appeals from an order of the Civil Court, New York County, dated March 20, 2002 (Donna G. Recant, J.) denying defendant's motion to dismiss the action for lack of jurisdiction.


PER CURIAM:

Order dated March 20, 2002 (Donna G. Recant, J.) affirmed, with $10 costs.

The court below properly denied defendant's motion to dismiss the action since defendant waived the affirmative defense of improper service by failing to move to dismiss on that ground within 60 days after service of his answer (CPLR 3211[e]; Worldcom, Inc. v Dialing Loving Care, 269 AD2d 159). We further note that defendant provided no basis to extend the 60-day time limit by a showing of "undue hardship" (CPLR 3211[e]) and that defendant's motion to dismiss was based only on conclusory allegations of improper service. Nor did the re-filing of defendant's answer extend the 60-day time limit (see, Zucco v Antin, 257 AD2d 421).

This constitutes the decision and order of the court.