Opinion
December 27, 1994
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which granted that branch of the defendants' motion which was to dismiss the amended complaint, and substituting therefor a provision denying that branch of the motion and reinstating the complaint; as so modified, the order is affirmed, without costs or disbursements.
Although the plaintiff served his amended complaint without leave from the Supreme Court, beyond the time within which an amendment could have been made as of right (see, CPLR 3025), the defendants waived any objection to those pleadings on that basis by failing to reject them (see, Nassau County v Incorporated Vil. of Roslyn, 182 A.D.2d 678). The record demonstrates that the defendants accepted the amended complaint and even attempted to interpose an answer, although it was untimely (see, Lampman v Cairo Cent. School Dist., 47 A.D.2d 794).
Furthermore, since the plaintiff attempted to obtain a default judgment within one year from the time the defendants were obligated to respond to the amended complaint, the court erred in dismissing the amended complaint as abandoned (see, CPLR 3215 [c]; see generally, Lovisa Constr. Co. v Facilities Dev. Corp., 148 A.D.2d 913).
Finally, the court did not improvidently exercise its discretion in vacating the default judgment, since the plaintiff's affidavit of additional notice submitted in support of his application for a default judgment was not in the form required by CPLR 3215 (g) (3) (i) (see, Tsiporin v Ziegel, 203 A.D.2d 451). Bracken J.P., Balletta, Friedmann and Krausman, JJ., concur.