Opinion
April 14, 1997
In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Ain, J.), dated September 16, 1996, as denied his motion to strike the answer.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The court properly denied the plaintiff's motion to strike the defendant's answer on the ground that the defendant had asserted inconsistent defenses ( see, CPLR 3014; Collins v. Caldor of Kingston, 73 A.D.2d 708, 709; George v. Sparwood Realty Corp., 34 A.D.2d 768).
Furthermore, we reject the plaintiff's contention that the defendant's answer to the amended verified complaint was untimely interposed, since the plaintiff failed to establish that he properly served the defendant with the order granting the plaintiff leave to amend his verified complaint ( see, Everything Yogurt v. Toscano, 232 A.D.2d 604; Frankel v. Schilling, 149 A.D.2d 657). Mangano, P.J., Ritter, Sullivan, Altman and McGinity, JJ., concur.