Bennardo v. Del Monte Caterers, Inc.

—In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated June 21, 1999, which denied their motion, inter alia, for summary judgment and to dismiss the defendants’ affirmative defenses and counterclaims, and granted the cross motion of the defendant J & P 1870 Realty Corp. to compel compliance with its discovery demands. Ordered that the order is modified by deleting the provision thereof denying that branch of the plaintiffs’ motion which was to dismiss the affirmative defense of improper service of pro [490] cess asserted by the defendant Frank Catapano and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements. The Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment prior to discovery (see generally, Jones v Gameray, 153 AD2d 550; Kennerly v Campbell Chain Co., 133 AD2d 669). However, the Supreme Court should have granted that branch of their motion which was to dismiss the affirmative defense of improper service of process asserted by the defendant Frank Catapano, as he failed to move to dismiss the complaint insofar as asserted against him within the time required by CPLR 3211 (e) (see, Fleet Bank v Riese, 247 AD2d 276). Bracken, J. P., Joy, McGinity and Feuerstein, JJ., concur.