Maunz v. Laube

Order unanimously affirmed, without costs. Memorandum: We find no sufficient justification or explanation for the delay in serving the complaint herein, and under usual circumstances it would have been an abuse of discretion to deny the motion to dismiss the complaint pursuant to CPLR 3012. Here, however, the complaint, which was served on January 8, 1976, was retained by defendant without objection until February 5, 1976, and the motion to dismiss was not made until February 11, 1976. The objection to the late service of the complaint, under these circumstances, must be deemed to have been waived. (See Lavigne v Allen, 36 AD2d 981; Lucenti v City of Buffalo, 29 AD2d 833.) In Lucenti v City of Buffalo (supra), the court held that retention of the complaint effected a waiver, although the motion to dismiss under CPLR 3012 was already pending when the complaint was served and retained. Here the complaint was not rejected until 27 days after it was served. Another six days elapsed before the motion was made. Moreover, because the late service of the complaint had been waived, defendant, himself, was in default for failure to answer or otherwise move within the prescribed period (CPLR 3012, subd [a]). (Appeal from order of Monroe Supreme Court—dismiss action.) Present—Marsh, P. J., Dillon, Hancock, Jr., Denman and Witmer, JJ.