Maloney v. Braeside Apartments Co.

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion to dismiss the complaint and cross claims against defendant N. Lawrence Caruso & Associates, P. C. (Caruso PC). Caruso PC contends that its motion should have been granted because plaintiff’s cause of action did not accrue until after Caruso PC’s corporate existence was dissolved. Caruso PC failed to plead that defense, and failed to raise it on the record, thus waiving it (see, Martin v Rockwell Graphic Sys., 192 AD2d 1124; Schaffer Stores Co. v Grand Union Co., 84 AD2d 614, appeal dismissed 56 NY2d 570; Pace v Perk, 81 AD2d 444; see generally, CPLR 3018 [b]). Whether Architectural Associates of Syracuse is a continuation of Caruso PC and thereby responsible for the latter’s liabilities is not an issue before this Court. Architectural Associates of Syracuse is not a party to this action. Supreme Court properly dismissed the complaint and cross claims against N. L. Caruso. Delivery of the summons and complaint to Caruso’s former place of business, which he had ceased to use when he sold the business some three years earlier, was insufficient to confer personal jurisdiction upon Caruso (see, Continental Hosts v Levine, 170 AD2d 430). (Appeals from Order of Supreme Court, Onondaga County, Mordue, J.—Dismiss Complaint.) Present—Denman, P. J., Pine, Balio, Fallon and Boehm, JJ.