Bennett v. Hucke

• Court: New York Supreme Court — Appellate Division
• Citation: Bennett v. Hucke, 64 A.D.3d 529, 881 N.Y.S.2d 335, 2009 NY Slip Op 5736 (N.Y. App. Div. 2009)
• Decision Date: 07 July 2009
• Docket Number: 2008-04341.
• Parties: JOSEPH BENNETT, Appellant, et al., Plaintiff, v. MICHAEL HUCKE, et al., Defendants, and ALAN KIRK et al., Respondents.

64 A.D.3d 529

881 N.Y.S.2d 335

2009 NY Slip Op 05736

JOSEPH BENNETT, Appellant, et al., Plaintiff, v. MICHAEL HUCKE, et al., Defendants, and ALAN KIRK et al., Respondents.

2008-04341.

Appellate Division of the Supreme Court of New York, Second Department.

Decided July 7, 2009.

In an action to recover damages for personal injuries, etc. the plaintiff Joseph Bennett, as guardian 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 the defendants Alan Kirk, Alan H. Kirk, Inc., and Alan Kirk Custom Homes, Inc., pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, and the respondents' motion pursuant 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), pursuant to CPLR 3211 to dismiss the complaint was not made within the time period in which those defendants were required to serve an answer (see CPLR 3211 [e]). Accordingly, since no extension of time to make the motion was requested by the Kirk defendants or granted by the court (see CPLR 2004), the motion should have been denied as untimely (see Bowes v Healy, 40 AD3d 566 [2007]; Diaz v DiGiulio, 29 AD3d 623 [2006]; Continental Info. Sys. Corp. v Mutual Life Ins. Co. of N.Y., 77 AD2d 316, 318 [1980]). The Kirk defendant...