Opinion
May 2, 1994
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the order is affirmed, with costs.
We find that the appellants knew or should have known that the instant action had been commenced against the defendant Dr. Albert Gottesman several months before they were served, without leave of court, but before the expiration of the Statute of Limitations. Nevertheless, the appellants answered the "amended" complaint served on them, and engaged in discovery for approximately six months until, after the Statute of Limitations had run, they moved for summary judgment on the ground of improper joinder. Under the circumstances, we conclude that the appellants waived the alleged defect in the manner in which they were joined as parties (see, Santopolo v. Turner Constr. Co., 181 A.D.2d 429; Gross v. BFH Co., 151 A.D.2d 452; Gavigan v Gavigan, 123 A.D.2d 823; McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624). In view of the foregoing finding, we do not reach the plaintiff's other argument that a stipulation entered into with the appellants waiving objections to personal jurisdiction obviated the need for a court order (see, Santopolo v. Turner Constr. Co., supra, at 430; Micucci v. Franklin Gen. Hosp., 136 A.D.2d 528, 529; CPLR 3025 [b]).
We further conclude that the Supreme Court did not improvidently exercise its discretion in permitting the plaintiff to amend her complaint nunc pro tunc, as the appellants failed to show how they would be prejudiced thereby (see, Brock v. Bua, 83 A.D.2d 61; see also, CPLR 305 [c]; 1003, 3025 [b]). Mangano, P.J., Thompson, Joy and Friedmann, JJ., concur.