Opinion
May 7, 1990
Appeal from the Court of Claims (Blinder, J.).
Ordered that the order is affirmed, with costs.
Assuming, arguendo, that the service of the claim upon the Attorney-General by ordinary mail in contravention of Court of Claims Act § 11 gave rise to a defect in personal jurisdiction (see, Reed v. State of New York, 147 A.D.2d 767; Thomas v. State of New York, 144 A.D.2d 882; Baggett v. State of New York, 124 A.D.2d 969; but see, Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721 ; Mingues v. State of New York, 146 Misc.2d 412), we find unpersuasive the State's contention that the court improperly denied its motion for leave to amend its answer to assert that defense. Although the State was aware of the allegedly improper manner of service at the outset, it failed to raise a jurisdictional objection in its answer or in a preanswer motion to dismiss, and thereby waived the defense (see, CPLR 3211 [a] [8]; [e]; Addesso v. Shemtob, 70 N.Y.2d 689; Reed v State of New York, supra; Leon v. Montano, 119 A.D.2d 553). Moreover, the State inordinately delayed in seeking leave to amend its answer, and failed to proffer a reasonable and acceptable excuse for the 32-month delay between learning of the improper service and moving to amend (see, Leon v. Montano, supra; see generally, Ross v. Ross, 143 A.D.2d 429). It is well settled that a motion for leave to amend is addressed to the broad discretion of the trial court (see, Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957), and the resulting determination "will not lightly be set aside" (Beuschel v. Malm, 114 A.D.2d 569). Under the circumstances presented in this case, we discern no improvident exercise of discretion in the court's denial of the State's motion.
While we have no occasion on this appeal to pass upon the applicability of the recent decision in Finnerty v. New York State Thruway Auth. ( 75 N.Y.2d 721, supra) to the facts of this case, we note that the State, if it be so advised, remains free to seek any relief in the Court of Claims to which it deems itself entitled under that decision. Thompson, J.P., Bracken, Sullivan and Balletta, JJ., concur.