Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term erred in dismissing, sua sponte, petitioner's original CPLR article 78 petition against the Town of Gaines on the ground that it was not timely served. The petition was served within the time period stipulated by the parties and, in any event, the town waived the affirmative defense of the Statute of Limitations by not pleading...
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