Opinion
January 19, 1999.
Appeal from the Supreme Court, Kings County (Belen, J.).
Ordered that the order is affirmed, with costs.
Contrary to the defendants' contention, they appeared in the action by executing the stipulation which extended their time to answer and waived the affirmative defense of personal service ( see, Parrotta v. Wolgin, 245 A.D.2d 872; Cohen v. Ryan, 34 A.D.2d 789; Kimmel v. State of New York, 172 Misc.2d 906). This appearance, made within 120 days after the commencement of the action, was sufficient to avoid automatic dismissal pursuant to CPLR former 306-b N.Y.C.P.L.R. (a) ( see, Parrotta v. Wolgin, supra; Kimmel v. State of New York, supra). Accordingly, the Supreme Court did not err in vacating the dismissal of the action.
O'Brien, J.P., Sullivan, Krausman and Florio, JJ., concur.