| Federici v Metropolis Night Club, Inc. |
| 2008 NY Slip Op 01703 [48 AD3d 741] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Anthony Federici, Jr., et al., Respondents, v MetropolisNight Club, Inc., et al., Defendants, and Andrea Provenzano, Appellant. (And a Third-PartyAction.) |
—[*1] Mathew J. Mari, New York, N.Y. (David M. Lee of counsel), for respondents.
In an action to recover damages for personal injuries, the defendant Andrea Provenzano, asexecutrix of the estate of John Provenzano, appeals from an order of the Supreme Court, KingsCounty (Starkey, J.), dated February 14, 2007, which granted those branches of the plaintiffs'motion which were to strike the eighth, ninth, and tenth affirmative defenses in her answer anddenied those branches of her cross motion which were to dismiss the complaint insofar asasserted against her as time-barred and for lack of personal jurisdiction or, in the alternative, todisqualify the plaintiffs' attorneys pursuant to Code of Professional Responsibility DR 5-102 (22NYCRR 1200.21).
Ordered that the order is affirmed, with costs.
In a prior order dated September 13, 2006, the Supreme Court granted the plaintiffs' motionpursuant to CPLR 1015 (a) to substitute Andrea Provenzano, as executrix of the estate of JohnProvenzano (hereinafter the estate), in the place and stead of the named defendant JohnProvenzano. This order also directed the estate to file an answer with leave to assert any and allaffirmative defenses, without prejudice to the plaintiffs' right to move to dismiss any defenses orpleadings they deemed inappropriate or inconsistent with prior pleadings. The estate served ananswer with 27 affirmative defenses. The plaintiffs moved, inter alia, to strike the estate's eighththrough tenth affirmative defenses. The estate cross-moved, inter alia, to dismiss the complainton the grounds of [*2]lack of personal jurisdiction and that thecomplaint was time-barred. The Supreme Court granted those branches of the plaintiffs' motionwhich were to dismiss the estate's eighth, ninth, and tenth affirmative defenses and denied theestate's cross motion to dismiss the complaint or, in the alternative, disqualify the plaintiffs'attorneys pursuant to Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21). Weaffirm.
Contrary to the estate's contention, the plaintiffs' action was commenced against decedentJohn Provenzano, not his son John Provenzano. Where two persons of the same name are fatherand son, the name is commonly presumed to have been that of the father (see Matter ofFoster, 173 Misc 1024, 1026-1028 [1940]; 9 Wigmore, Evidence § 2529, at 598[Chadbourn rev 1981]). Further, in directing the substitution of his executrix in his place andstead pursuant to CPLR 1015 (a), the Supreme Court's prior order necessarily determined that thedecedent John Provenzano was the named defendant and the plaintiffs' claims against him werenot extinguished by his death.
Following the order of substitution, when the estate served its answer, it raised, inter alia, theaffirmative defense of lack of personal jurisdiction. However, five years earlier, an answer wasserved on behalf of John Provenzano which did not contain this defense. Having failed to moveto dismiss on that ground within 60 days after serving this answer, the defendant JohnProvenzano waived that defense (seeJacobowitz v Leak, 19 AD3d 453, 455 [2005]; Dimond v Verdon, 5 AD3d 718 [2004]). Consequently, we do notreach the issue of whether service was properly effected (see Amerasia Bank v Saiko Enters.,263 AD2d 519, 520 [1999]). Further, the substitution of a party because of death does notextend or renew the time to take any procedural step that has expired (see CPLR 1022).Accordingly, the Supreme Court correctly dismissed the estate's eighth affirmative defense.
The plaintiffs' action was timely commenced against John Provenzano, and thus his estate bysubstitution, by filing with the Kings County Clerk on February 26, 2001 or, less than one yearfrom the date of this incident, August 4, 2000 (see CPLR 304). The estate conceded thatall of the plaintiffs' causes of action have a limitations period of one year or more. Accordingly,the estate's ninth affirmative defense based upon the expiration of the applicable statutes oflimitation is without merit and was correctly dismissed by the Supreme Court.
Upon a motion to dismiss a defense, the defendant is entitled to the benefit of everyreasonable intendment of its pleading, which is to be liberally construed. If there is any doubt asto the availability of a defense, it should not be dismissed (see Amerada Hess Corp. v Town of Southold, 39 AD3d 442[2007]; Warwick v Cruz, 270 AD2d 255 [2000]). Applying these standards, the tenthaffirmative defense alleging estoppel was properly dismissed by the Supreme Court as, under thecircumstances of this case, and in light of our determination herein, it is unavailable to defeat theplaintiffs' causes of action (see generallyAmerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]).
In light of the foregoing, the Supreme Court properly denied the estate's cross motion todismiss the complaint insofar as asserted against it as time-barred or for lack of personaljurisdiction.
The estate's remaining contention has been rendered academic by our determination. Ritter,J.P., Santucci, Covello and Carni, JJ., concur.