| Britt v Buffalo Mun. Hous. Auth. |
| 2008 NY Slip Op 00915 [48 AD3d 1181] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Carmen Britt, Individually and as Executor of Lula Baity,Deceased, Appellant, v Buffalo Municipal Housing Authority et al., Defendants, and GraceManor Health Care Facility, Inc., et al., Respondents. (Appeal No. 2.) |
—[*1] Feldman Kieffer & Herman, LLP, Buffalo (Adam C. Ferrandino of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredMarch 24, 2006. The order granted the motion of defendants Grace Manor Health Care Facility,Inc., David J. Gentner, Mary Stephan, Kathy Randall, and Tiffany Matthews to dismiss thecomplaint against them.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withcosts, the motion is denied, and the complaint against defendants Grace Manor Health CareFacility, Inc., David J. Gentner, Mary Stephan, Kathy Randall, and Tiffany Matthews isreinstated.
Memorandum: Plaintiff and the original coplaintiff, now plaintiff's decedent, commencedthis action to recover damages for the alleged wrongful removal of decedent from her home andher unlawful confinement. We agree with plaintiff that Supreme Court erred in granting themotion of defendants-respondents (defendants) to dismiss the complaint against them on theground of improper service of process. Defendants waived their objection to service of processby failing to move to dismiss the complaint on that ground within 60 days after serving theiranswer setting forth an objection to service of process, and defendants failed to demonstrateundue hardship to justify an extension of their time to move for dismissal of the complaint onthat ground (see CPLR 3211 [e]; Woleben v Sutaria, 34 AD3d 1295 [2006]; Vandemark vJaeger, 267 AD2d 672 [1999]). "We consider plaintiff's contention despite the fact that it israised for the first time on appeal inasmuch as defendants could not have opposed that contentionby factual showings or legal countersteps before [the court]" (Edwards v Siegel, Kelleher & Kahn, 26 AD3d 789, 790 [2006][internal quotation marks omitted]). Finally, we reject defendants' alternative ground foraffirmance, for the reasons stated in our decision in Britt v Buffalo Mun. Hous. Auth. (43 AD3d 1443 [2007]).Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.