Busby v. 150th Street Garage Corp. ( 1983 )

Fein and Alexander, JJ., dissent in a memorandum by Alexander, J., as follows:

I would affirm the orders appealed from since by serving an amended answer to the amended complaint even after having moved to dismiss pursuant to CPLR 3216, the defendant acquiesced in the resumption of the litigation 1 and waived plaintiff’s failure to comply with the 90-day demand. The amended complaint was served in April, 1981, before either of the defendant Hawkins’ motions under CPLR 3216 was made. Although the first motion was decided on June 15, 1981, and filed on June 19, 1981, defendant failed to apprise himself of that fact and made an improper second motion to dismiss on July 21, 1981. He served an answer to the amended complaint on July 27, 1981, notwithstanding the second motion to dismiss. Thus it may properly be said that he has acquiesced in the resumption of the litigation.