Ordered that the order is affirmed, with costs.
The plaintiff failed to obtain leave pursuant to CPLR 3025 (b) and 1003 to serve an "amended summons and complaint" purporting to join Bayerische Motoren Werke, AG. (hereinafter BMW), as a party defendant. Generally, unless there has been a waiver, the failure to obtain leave of the court constitutes a jurisdictional defect requiring dismissal of the action against the party so joined (see, Gross v. BFH Co., 151 A.D.2d 452; Camacho v. New York City Tr. Auth., 115 A.D.2d 691, 692; McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624, 625; Catanese v. Lipschitz, 44 A.D.2d 579). Since BMW asserted the defense of lack of personal jurisdiction in its answer and did not engage in any conduct sufficient to constitute a waiver of its right to object to the improper joinder, we find that the court properly dismissed the action against it. Kunzeman, J.P., Eiber, Sullivan and Balletta, JJ., concur.