Sobczynski v. Chiari , 682 N.Y.S.2d 898 ( 1999 )

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Belen, J.), dated November 26, 1997, which granted the plaintiffs’ motion to vacate the dismissal of the action pursuant to CPLR former 306-b (a).

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contention, they appeared in the action by executing the stipulation which extended their time to answer and waived the affirmative defense of personal service (see, Parrotta v Wolgin, 245 AD2d 872; Cohen v Ryan, 34 AD2d 789; Kimmel v State of New York, 172 Misc 2d 906). This appearance, made within 120 days after the commencement of the action, was sufficient to avoid automatic dismissal pursuant to CPLR former 306-b (a) (see, Parrotta v Wolgin, supra; Kimmel v State of New York, supra). Accordingly, the Supreme Court did not err in vacating the dismissal of the action. O’Brien, J. P., Sullivan, Krausman and Florio, JJ., concur.