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SIMON v. LEWIS

Index No. 305209/13, Appeal Nos. 16210-16211-16212-16212A-16212B, Case Nos. 2019-1116, 2019-3900, 2019-00653, 2019-1182, 2021-00520.

206 A.D.3d 581 (2022)

171 N.Y.S.3d 487

2022 NY Slip Op 04140

Leon Simon et al., Respondents, v. Bernard Lewis et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided June 28, 2022.

Attorney(s) appearing for the Case

Bernard Lewis, appellant pro se.

Coleen Weaver, as Administrator of Ethans Estate Trust, appellant pro se.

Albert A. Hatem, P.C., White Plains (Albert A. Hatem of counsel), for respondents.

Concur—Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ.

Supreme Court correctly denied Lewis's CPLR 3211 motion to dismiss the original complaint, made more than five years after the litigation commenced. Lewis waived his arguments based on documentary evidence and lack of capacity to sue by failing to raise them within the time to answer the complaint (see CPLR 3211[e]; Dougherty v City of Rye, 63 N.Y.2d 989, 991-992 [1984]). In any event, the documentary evidence did not conclusively...

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