| Bennett v Hucke |
| 2009 NY Slip Op 05736 [64 AD3d 529] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Joseph Bennett, Appellant, et al., Plaintiff, v MichaelHucke et al., Defendants, and Alan Kirk et al., Respondents. |
—[*1] Mazzara & Small, P.C., Hauppauge, N.Y. (Timothy F. Mazzara of counsel), forrespondents.
In an action to recover damages for personal injuries, etc. the plaintiff Joseph Bennett, asguardian of James Bennett, an incapacitated person, appeals from an order of the Supreme Court,Suffolk County (Tanenbaum, J.), dated March 18, 2008, which granted the motion of thedefendants Alan Kirk, Alan H. Kirk, Inc., and Alan Kirk Custom Homes, Inc., pursuant to CPLR3211 to dismiss the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the respondents' motionpursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them is denied.
As the plaintiff correctly contends, the motion of the defendants Alan Kirk, Alan H. Kirk,Inc., and Alan Kirk Custom Homes, Inc. (hereinafter collectively the Kirk defendants), pursuantto CPLR 3211 to dismiss the complaint was not made within the time period in which thosedefendants were required to serve an answer (see CPLR 3211 [e]). Accordingly, since noextension of time to make the motion was requested by the Kirk defendants or granted by thecourt (see CPLR 2004), the motion should have been denied as untimely (see Bowes v Healy, 40 AD3d 566[2007]; Diaz v DiGiulio, 29 AD3d623 [2006]; Continental Info. Sys. Corp. v Mutual Life Ins. Co. of N.Y., 77 AD2d316, 318 [1980]). The Kirk defendants may pursue any appropriate relief by way of a summaryjudgment motion in the normal course of the litigation (see Diaz v DiGiulio, 29 AD3d at623).
In view of the foregoing, we need not reach the parties' remaining contentions. Mastro, J.P.,Skelos, Dickerson and Lott, JJ., concur.