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Par Plumbing Co., Inc. v Gotham Bay Constr. Corp.
2005 NYSlipOp 50895(U)
Decided on June 10, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 10, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.


Par Plumbing Co., Inc., 570301/04 Plaintiff-Appellant,

against

Gotham Bay Construction Corp., Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court, New York County, entered October 8, 2003 (Donna G. Recant, J.) which, sua sponte, dismissed the complaint for failure to state a cause of action.


PER CURIAM:

Order entered October 8, 2003 (Donna G. Recant, J.) reversed, with $10 costs, motion denied, and complaint reinstated.

Defendant's motion, which sought dismissal of the complaint solely on the ground of lack of personal jurisdiction, should have been denied since defendant waived that defense by failing to make the motion within 60 days after serving its answer (CPLR 3211[e]; see Wiebusch v Bethany Mem. Reform Church, 9 AD3d 315 [2004]). Consequently, we do not reach the issue of whether service was properly effected. The motion court erred to the extent that it sua sponte dismissed the complaint for failure to state a cause of action, since the facts alleged sufficiently make out causes of action for breach of contract and account stated.

This constitutes the decision and order of the court.
Decision Date: June 10, 2005