General

Juanita Lewis, Respondent, v. Manhattan and Bronx Surface Transit Operating Authority et al., Appellants

209 A.D.2d 366619 N.Y.S.2d 557·New York Supreme Court, Appellate Division·1994·NY

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Opinion

Juanita Lewis, Respondent, v Manhattan and Bronx Surface Transit Operating Authority et al., Appellants. [619 NYS2d 557] [MAJORITY] —Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered August 9, 1993, which denied defendants’ motion to dismiss the complaint, unanimously affirmed, without costs. Defendant Authority waived its right to seek dismissal of the action on the ground that plaintiff did not appear at an oral examination demanded pursuant to Public Authorities Law § 1212 (5), not having raised such ground as an affirmative defense in its answer, but instead asserting it for the first time on a motion to dismiss made three years after commencement of the action, after discovery had been completed and the case calendared for trial (see, Hoffman v New York City Hous. Auth., 187 AD2d 334, 338). Concur—Sullivan, J. P., Ellerin, Kupferman and Asch, JJ.