| Klein v Educational Loan Servicing, LLC |
| 2010 NY Slip Op 02519 [71 AD3d 957] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Amit Klein, Appellant, v Educational Loan Servicing,LLC, et al., Respondents. |
—[*1] Wollmuth Maher & Deutsch, LLP, New York, N.Y. (Andrew S. Baron of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Nassau County (Woodard, J.), entered July 3, 2008, whichdenied his motion pursuant to CPLR 3215 for leave to enter a judgment upon the defendants'default in appearing or answering the complaint, granted that branch of the defendants' crossmotion which was to dismiss the complaint against the individual defendants pursuant to CPLR3211 (a) (8) on the ground of lack of personal jurisdiction under CPLR 301, and sua spontedismissed the complaint against the corporate defendants on that ground. The appeal brings upfor review so much of an order of the same court entered December 24, 2008, as denied thatbranch of the plaintiff's motion which was for leave to renew (see CPLR 5517 [b]).
Ordered that the order entered July 3, 2008, is affirmed, without costs or disbursements; andit is further,
Ordered that the order entered December 24, 2008, is affirmed insofar as reviewed, withoutcosts or disbursements.
After the plaintiff moved pursuant to CPLR 3215 for leave to enter a judgment upon thedefendants' default in appearing or answering the complaint, the defendants cross-moved, interalia, to dismiss the complaint against the individual defendants pursuant to CPLR 3211 (a) (8) onthe ground of lack of proper service of the summons and complaint and on the ground that theindividual defendants were not subject to personal jurisdiction under CPLR 301 or 302. In anorder entered July 3, 2008, the Supreme Court denied the plaintiff's motion and granted thatbranch of the defendant's cross motion which was to dismiss the complaint on the ground of lackof personal jurisdiction over the individual defendants under CPLR 301. The Supreme Court alsodismissed the complaint against the corporate defendants on that ground, although that argumentwas not advanced by the defendants. Thereafter, in an order entered December 24, 2008, theSupreme Court denied the plaintiff's motion, inter alia, for leave to renew. We affirm, but for adifferent reason.[*2]
Here, the defendants did not seek dismissal of thecomplaint insofar as asserted against the corporate defendants on the ground of lack ofjurisdiction under either CPLR 301 or 302. Rather, the defendants contended that the complaintshould be dismissed insofar as asserted against the corporate defendants based on improperservice of process. By failing to contend that there was no jurisdiction under either CPLR 301 or302 over the corporate defendants in their cross motion, the defendants waived their challenge towhether the corporate defendants were subject to personal jurisdiction (see Wiesener v AvisRent-A-Car, 182 AD2d 372, 373 [1992]; Hatch v Tu Thi Tran, 170 AD2d 649, 650[1991]; Boswell v Jiminy Peak, 94 AD2d 782, 783 [1983]).
Nevertheless, the plaintiff's motion for leave to enter a default judgment should have beendenied and the complaint dismissed as against all defendants since the plaintiff failed to presentproof of valid service of the summons and complaint as required by CPLR 312-a (a) and (b). Theplaintiff submitted evidence that he served the defendants by certified mail, return receiptrequested. However, he presented no evidence that copies of the summons and complaint weresent to the defendants, by first-class mail, together with, inter alia, two copies of a statement ofservice by mail and acknowledgment of receipt, and that the signed acknowledgment of receiptswere mailed or delivered to the plaintiff (see CPLR 312-a [a], [b]). In the absence ofproper service, no personal jurisdiction was acquired over the defendants (see Bennett v Acosta, 68 AD3d910 [2009]; Horseman Antiques,Inc. v Huch, 50 AD3d 963, 964 [2008]; Dominguez v Stimpson Mfg. Corp.,207 AD2d 375 [1994]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Santucci, Eng andChambers, JJ., concur.