Opinion
June 8, 1999.
Appeal from the Supreme Court, New York County (Bernard Fried, J.).
Although defendants waived reliance upon the jurisdictional defect caused by plaintiff's failure to purchase a new index number for his plenary action, and sua sponte dismissal of the complaint would, therefore, have been inappropriate ( see, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714), it was, nonetheless, within the court's authority to order plaintiff to purchase a new index number and to have the relevant documents transferred to the file bearing that number effective nunc pro tunc ( see, Poley Paving Corp. v. United Cerebral Palsy Assn., 241 A.D.2d 847).
Finally, the motion court's refusal to strike defendants' answer pursuant to CPLR 3126 was proper under all the circumstances, including defendant City's ultimate compliance, albeit tardy, with plaintiff's discovery requests ( see, Lawrence v. City of New York, 252 A.D.2d 482), for which delay an adequate excuse was offered.
Concur — Sullivan, J.P., Nardelli, Lerner, Rubin and Saxe, JJ.