Opinion
June 1, 1989
Appeal from the Supreme Court, Westchester County (Buell, J.).
Ordered that the order is affirmed, with costs to the plaintiffs.
On appeal, the appellants contend that the court erred in holding that they waived their objection to the plaintiffs' failure to obtain leave pursuant to CPLR 3025 (b) and 1003 to serve a supplemental summons and complaint joining them as parties to the action. Unless waived, such a failure normally requires dismissal of the action against a party so joined (see, Camacho v. New York City Tr. Auth., 115 A.D.2d 691, 692; McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624; Catanese v Lipschitz, 44 A.D.2d 579). However, the failure to obtain leave of the court is not a fatal defect in all cases (see, Gavigan v Gavigan, 123 A.D.2d 823; McDaniel v. Clarkstown Cent. Dist. No. 1, supra), and "CPLR 1001 and CPLR 1003 give a court wide latitude and are to be liberally construed" (Micucci v. Franklin Gen. Hosp., 136 A.D.2d 528, 529).
The central issue in this appeal is whether the conduct of the appellants is sufficient to constitute a waiver of their right to object to being joined as parties without prior leave of the court. Documentary evidence and the examinations before trial show that the appellants' parent corporation's predecessor in interest was served and answered for the appellants. The appellants also participated in discovery, without objection. Thus, the Supreme Court properly found that the appellants waived their right to object to the allegedly improper joinder (see, Rubino v. City of New York, 145 A.D.2d 285). Under these circumstances, the appellants cannot claim prejudice or surprise by the plaintiffs' delay in seeking leave to serve the supplemental summons and complaint joining them as parties nunc pro tunc (see, Fahey v. County of Ontario, 44 N.Y.2d 934). Bracken, J.P., Rubin, Harwood and Balletta, JJ., concur.