Hack v. Wagner ( 1998 )

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In view of our decision in Hack v City of Syracuse (256 AD2d 1226 [decided herewith]), we modify the order by granting in part plaintiffs motion and striking the second affirmative defense that the action is barred by failure to comply with General Municipal Law §§ 50-e and 50-i, denying defendant’s cross motion for summary judgment and reinstating the complaint. That part of plaintiffs motion seeking to strike the fifth affirmative defense that the complaint is procedurally defective for failure to comply with CPLR 3017 (c) was properly denied. We do not reach the remainder of plaintiffs motion seeking to strike the eighth affirmative defense that plaintiff lacks in personam jurisdiction over defendant because plaintiff did not brief that issue (see, Ciesinski v Town of Aurora, 202 AD2d 984). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.— Dismiss Pleading.) Present — Denman, P. J., Pine, Pigott, Jr., Balio and Fallon, JJ.