Ordered that the order is affirmed, with costs.
Inasmuch as the summons and complaint were timely served, this action cannot be considered a nullity merely because the original plaintiff lacked the capacity to sue (see, Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 249; Seidensticker v. Huntington Hosp., 194 A.D.2d 718). Although the defendant maintains that the subsequent order substituting the Public Administrator as plaintiff was obtained by fraud, we agree with the Supreme Court that the record does not support this contention. Because the defect in capacity was cured prior to the defendant's motion to dismiss, the motion was properly denied (see, Seidensticker v Huntington Hosp., supra; Snay v. Cohoes Mem. Hosp., 110 A.D.2d 1021, 1022). Sullivan, J.P., Miller, Copertino and Goldstein, JJ., concur.