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CLARKE v. DAVIS

277 A.D.2d 902 (2000)

715 N.Y.S.2d 830

WAYNE CLARKE, Appellant, v. CHARLES L. DAVIS, Respondent. (Appeal No. 1.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided November 13, 2000.

Judgment unanimously reversed on the law without costs and complaint reinstated.

Memorandum:

Although the complaint was subject to dismissal based on plaintiff's failure to comply with CPLR 304, defendant failed to object to the defective filing either in his initial answer or in his cross motion to dismiss. Thus, Supreme Court erred in sua sponte dismissing the complaint on that ground (see, Matter of Fry v Village of Tarrytown,

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