Opinion
2012-02-14
NYRU, INC., Plaintiff–Appellant–Respondent, v. FORGE RESTAURANT, LLC, Defendant–Respondent–Appellant.
Lawrence B. Goodman, New York, for appellant-respondent. Patrick Kevin Brosnahan, Jr., Babylon, for respondent-appellant.
Lawrence B. Goodman, New York, for appellant-respondent. Patrick Kevin Brosnahan, Jr., Babylon, for respondent-appellant.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered April 15, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the second cause of action, granted plaintiff's motion for leave to amend the complaint nunc pro tunc to correct defendant's name, and denied defendant's cross motion to dismiss the second cause of action, unanimously affirmed, with costs.
Defendant waived the defense of lack of personal jurisdiction by failing to plead it in its answer and by failing to move to dismiss the complaint on that ground within 60 days after serving its answer ( see CPLR 3211[a][8], [e]; Wiebusch v. Bethany Mem. Reform Church, 9 A.D.3d 315, 781 N.Y.S.2d 6 [2004] ). The motion court properly granted plaintiff leave to amend the complaint to correct defendant's name, since process was served on an employee of defendant, defendant participated in discovery, and no prejudice to defendant from the amendment was demonstrated ( see CPLR 305[c]; Rivera v. Beer Garden, Inc., 51 A.D.3d 479, 857 N.Y.S.2d 557 [2008]; Rodriguez v. Dixie N.Y.C., Inc., 26 A.D.3d 199, 810 N.Y.S.2d 34 [2006] ).
Written correspondence between the parties (signed by the party to be charged), payments made by defendant that are difficult to explain except by reference to the terms of the disputed consulting agreement, and defendant's ledgers showing monthly payments made, present issues of fact whether the parties entered into a consulting agreement ( see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 393 N.Y.S.2d 350, 361 N.E.2d 999 [1977] ) and whether the agreement was removed from the operation of the Statute of Frauds ( see General Obligations Law §§ 5–701[a][1]; 5–703[2]; Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55, 110 N.E.2d 551 [1953]; Steele v. Delverde S.R.L., 242 A.D.2d 414, 414, 662 N.Y.S.2d 30 [1997] ).
We have considered the parties' remaining arguments and find them unavailing.