| Reyes v Albertson |
| 2009 NY Slip Op 04043 [62 AD3d 855] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Nelson L. Reyes, Appellant, v Philip Albertson,Respondent. |
—[*1] O'Connor, McGuiness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Orange County (Giacomo, J.), dated March 24, 2008, which granted thedefendant's motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personaljurisdiction, and denied his cross motion, inter alia, for an extension of time to serve thedefendant and for an order authorizing expedient service.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe motion and substituting therefor a provision denying the motion as untimely, and (2) bydeleting the provision thereof denying the cross motion on the merits and substituting therefor aprovision denying the cross motion as academic; as so modified, the order is affirmed, with costspayable to the plaintiff.
Pursuant to CPLR 3211 (e), the defendant was required to move to dismiss the complaint forlack of proper service within 60 days following the service of the answer, unless an extension oftime was warranted on the ground of undue hardship. Contrary to the defendant's contention, themotion to dismiss the complaint, made approximately 106 days after service of the answer,raising the defense of lack of personal jurisdiction, was untimely and was not supported by anadequate showing of undue hardship which prevented the making of the motion within therequisite statutory period (see e.g.Woleben v Sutaria, 34 AD3d 1295 [2006]; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793 [2005]; State Farm Fire & Cas. Co. vFirmstone, 18 AD3d 900 [2005]; Worldcom, Inc. v Dialing Loving Care, 269[*2]AD2d 159 [2000]; Vandemark v Jaeger, 267 AD2d672 [1999]). Accordingly, the jurisdictional objection was waived, and the court should havedenied the motion (see Dimond vVerdon, 5 AD3d 718 [2004]; Thompson v Cuadrado, 277 AD2d 151 [2000];Greenpoint Bank v Schiffer, 266 AD2d 262 [1999], cert denied 531 US 896[2000]; Wade v Byung Yang Kim, 250 AD2d 323 [1998]). The defendant's contentionthat the service of the answer was unauthorized is improperly raised for the first time on appeal(see e.g. Gallagher v Gallagher, 51AD3d 718 [2008]; Dudla v Dudla, 304 AD2d 1009 [2003]; Orellano v SamplesTire Equip. & Supply Corp., 110 AD2d 757 [1985]).
In view of the foregoing, the plaintiff's cross motion should have been denied as academic.Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.