Opinion
January 6, 2000
Order and judgment (one paper), Supreme Court, New York County (Louise Gruner-Gans, J.), entered October 7, 1998, which, after a nonjury trial, awarded plaintiff the total sum of $78,985.18, unanimously affirmed, with costs.
Theodore Oshman, for plaintiff-respondent.
Howard J. Goldstein, for defendant-appellant.
NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN, FRIEDMAN, JJ.
Defendant failed to controvert the trial evidence tending to establish plaintiff's standing as a duly licensed insurance company. Moreover, defendant failed to affirmatively plead the defenses it now raises in regard to plaintiff's status. Hence, these defenses were waived. Also waived was defendant's claim of jurisdictional deficiency based upon plaintiff's failure to timely file an affidavit of service, since defendant appeared and defended the action without raising that jurisdictional objection (see, Matter of Fry v. Vil. of Tarrytown, 89 N.Y.2d 714).
We have reviewed defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.