Appellate Division of the Supreme Court of New York, First DepartmentJan 12, 1999
257 A.D.2d 421 (N.Y. App. Div. 1999)
257 A.D.2d 421682 N.Y.S.2d 354

January 12, 1999.

Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).

The affirmative defense of lack of jurisdiction due to improper service was properly dismissed as waived for failure to move on such defense within 60 days of service of the answer that first asserted it (CPLR 3211 [e]). We reject appellant's argument that the 60-day period was restarted upon his service of an amended answer as of right to an amended complaint that plaintiff served within the 60-day period ( cf., Addesso v. Shemtob, 70 N.Y.2d 689).

Concur — Rosenberger, J.P., Williams, Mazzarelli and Saxe, JJ.