City of New York failed to Affirmatively Plead "Improper Party"; Accordingly their Motion for Summary Judgment Denied.

Interesting decision from Justice Tapia of Supreme Court, Bronx County in Salinas v. City of New York index # 14740/2005. The case involved a middle school student who was hurt when he tripped, fell and struck a broken locker. Plaintiffs sued the City of New York and The Department of Education. Defendant ,City served an answer and subsequently served an amended answer. Five and a half years after the fall, defendant ,City of New York moved for summary judgment. Justice Tapia denied the motion and the Court noted in it's decision that The City of New York failed to affirmatively plead "improper party " in the answer or in the amended answer. In this case , the decision is of " little consequence " since The Dep't of Education is the target defendant. But it will something to watch if the City takes this issue up on appeal. Your thoughts?