| Isolabella v Sapir |
| 2012 NY Slip Op 04293 [96 AD3d 427] |
| June 5, 2012 |
| Appellate Division, First Department |
| Lodovico Isolabella, Respondent, v Tamir Sapir et al.,Appellants. |
—[*1] Peter B. Ackerman, White Plains, for respondent.
Orders, Supreme Court, New York County (Emily Jane Goodman, J.), entered November 14,2011, which denied defendants' motions for leave to file an untimely motion for summaryjudgment dismissing the complaint and for summary judgment dismissing the complaint on theground that they did not consent to being added as party defendants and plaintiff did not obtainleave of the court to add them, unanimously affirmed, without costs.
Defendants failed to demonstrate the requisite good cause for making a late motion forsummary judgment (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). They claim theaffirmative defenses of improper joinder (CPLR 1003) and plaintiff's failure to obtain leave toadd them as new party defendants (CPLR 3025), but they waived these defenses by substantiallyparticipating in the amended action for two years before (belatedly and untimely) serving ananswer that included the defenses. In any event, in a stipulation executed by all parties appearingin the action, defendants, through their in-house counsel, "consented" to service of the amendedcomplaint upon them. They have not shown that their in-house counsel lacked the authority toconsent to the amended complaint and their joinder on their behalf. Concur—Mazzarelli,J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.