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Capital One Bank v Thompson
2009 NY Slip Op 52248(U) [25 Misc 3d 135(A)]
Decided on November 10, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570219/09.

Capital One Bank, Plaintiff-Respondent,

against

William P. Thompson, Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered November 13, 2008, which, inter alia, granted plaintiff's motion for summary judgment.


Per Curiam.

Order (Anil C. Singh, J.), entered November 13, 2008, affirmed, without costs.

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law, defendant failed to raise any triable issues of fact. Defendant waived the defense of improper service of the summons and complaint by failing to either move to dismiss on that ground within 60 days after service of his answer or allege that any "undue hardship" caused him to miss that deadline (see CPLR 3211[e]; Worldcom, Inc. v Dialing Loving Care Inc., 269 AD2d 159 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 10, 2009