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Fleet Bank, N. A. v. Riese

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1998
247 A.D.2d 276 (N.Y. App. Div. 1998)

Opinion

February 17, 1998

Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).


Defendant's defense of improper service was properly deemed waived since he failed to move to dismiss the complaint based on this defense by March 3, 1997, i.e., 60 days after the January 1, 1997 effective date of chapter 501 of the Laws of 1996 amending CPLR 3211 (e) so as to require such a motion within 60 days after service of a pleading asserting such a defense (Chemical Fin. Servs. Corp. v. Zagaro, 173 Misc.2d 745, 748). The same considerations apply here as in Phoenix Garden Rest. v. Chu ( 245 A.D.2d 164), where we held that the new 120-day time limit in CPLR 3212 (a) on post-note-of-issue summary judgment motions applies to pending actions so as to bar such motions if made more than 120 days after the effective date of the amendment, also January 1, 1997. Such a construction does not prejudice defendant, who could have avoided the 60-day time limit by a showing of "undue hardship" (CPLR 3211 [e]), which he has failed to do. We have considered defendant's remaining contentions and find them to be without merit.

Concur — Sullivan, J. P., Rubin, Mazzarelli and Andrias, JJ.


Summaries of

Fleet Bank, N. A. v. Riese

Appellate Division of the Supreme Court of New York, First Department
Feb 17, 1998
247 A.D.2d 276 (N.Y. App. Div. 1998)
Case details for

Fleet Bank, N. A. v. Riese

Case Details

Full title:FLEET BANK, N. A., Respondent, v. DENNIS RIESE, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 17, 1998

Citations

247 A.D.2d 276 (N.Y. App. Div. 1998)
668 N.Y.S.2d 611

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