Venditti v. Town of Alden

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Len Rospierski and Susan M. Onisk (defendants) to dismiss the complaint. The record establishes that in November 1992 plaintiffs filed a request for judicial intervention and purchased an index number in an action entitled "Matter of Venditti v County of Erie.” The judicial intervention sought was an order granting leave to serve and file a late notice of claim. That motion was denied by order dated February 9, 1993. On February 18, 1993, plaintiffs filed a summons and complaint in this action under the index number obtained in November 1992. Because plaintiffs failed to pay a filing fee and secure an index number for the new action, the action was never properly commenced against defendants (see, CPLR 306-a; Matter of Gershel v Porr, 89 NY2d 327 , 332; Matter of Vetrone v Mackin, 216 AD2d 839 , 841). To the extent that our holding in Matter of Miner Co. v Lone Wolf Insulation ( 219 AD2d 831 ) is to the contrary, it is no longer to be followed. Nevertheless, dismissal is not warranted. Defendants failed to object to the defective filing either in their answer or in a timely motion to dismiss and thus waived this issue (see, Matter of Fry v Village of Tarry town, 89 NY2d 714 ). (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Dismiss Complaint.) Present—Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.