Opinion
June 19, 1995
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the appeal from the order dated May 2, 1994, is dismissed, as that order was superseded by the order dated September 14, 1994, made upon reargument; and it is further,
Ordered that the order dated September 14, 1994, is affirmed, and it is further,
Ordered that the respondents are awarded one bill of costs.
In this personal injury action, two answers were purportedly served on behalf of the defendant Spivey's Trucking Rigging Company (hereinafter Spivey's). The first answer contained affirmative defenses of lack of personal jurisdiction and the Statute of Limitations. The second answer, served by a different law firm, did not contain these defenses.
We reject the plaintiffs' contention that the second answer was in fact an amended answer, thus superseding the first answer. We find that the second answer was served by mistake and inadvertence, of which the plaintiffs were on notice, and there was never any intent by Spivey's to waive its affirmative defenses (cf., Keary v. Great Atl. Pac. Tea Co., 96 A.D.2d 499). O'Brien, J.P., Ritter, Pizzuto and Florio, JJ., concur.