| JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC |
| 2011 NY Slip Op 04424 [84 AD3d 1173] |
| May 24, 2011 |
| Appellate Division, Second Department |
| JP Morgan Chase Bank, N.A., Respondent, v Strands HairStudio, LLC, Defendant, and Sharon A. Payne, Defendant/Third-Party Plaintiff-Respondent.Stephanie Orr, Third-Party Defendant-Appellant. |
—[*1] Cullen and Dyckman, Garden City, N.Y. (Kerry A. Galvin of counsel), forplaintiff-respondent. Eisenberg & Carton, Bellmore, N.Y. (Lloyd M. Eisenberg of counsel), fordefendant/third-party plaintiff-respondent.
In an action to recover on a loan agreement and personal guarantee, the third-party defendantappeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered December 21,2009, which denied her motion, inter alia, for summary judgment dismissing the complaint andthe third-party complaint.
Ordered that the order is affirmed, with one bill of costs.
Contrary to the third-party defendant's contention, the Supreme Court properly denied thatbranch of her motion which was for summary judgment dismissing the main complaint on theground that the plaintiff lacked standing. Although a third-party defendant has the right to assertagainst the plaintiff "any defenses which the third-party plaintiff has to the plaintiff's claim"(CPLR 1008), here, the third-party defendant failed to raise the issue of the plaintiff's standing ina pre-answer motion to dismiss or as an affirmative defense in her answer. Thus, she waived herright to raise the argument at all subsequent phases of the litigation pursuant to CPLR 3211 (e)(see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818 [2010], certdenied 562 US —, 131 S Ct 648 [2010]; Countrywide Home Loans, Inc. vDelphonse, 64 AD3d 624, 625 [2009]; HSBC Bank, USA v Dammond, 59 AD3d679, 680 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241-243[2007]; Gilman v Abagnale, 235 AD2d 989, 990 [1997]).
The Supreme Court also properly denied that branch of the third-party defendant's motionwhich was for summary judgment dismissing the main complaint on the ground that theplaintiff's service upon the defendant Strands Hair Studio, LLC (hereinafter the LLC) did notcomport with Business Corporation Law § 306 (b) (1). Even assuming that the third-partydefendant did not waive this objection [*2]by failing to raise it inher answer or in a pre-answer motion to dismiss (see CPLR 3211 [e]), the court'spersonal jurisdiction over the LLC is not a "defense[ ] which the third-party plaintiff has to theplaintiff's claim," and, accordingly, it is not a defense the third-party defendant is entitled to raisehere pursuant to CPLR 1008.
The Supreme Court also properly denied that branch of the third-party defendant's motionwhich was for summary judgment dismissing the third-party complaint. Contrary to thethird-party defendant's contention, the third-party plaintiff's claims against her may be assertedpursuant to CPLR 1007. CPLR 1007 "should not be read as allowing recovery solely for claimssounding in strict indemnity" (George Cohen Agency v Donald S. Perlman Agency, 51NY2d 358, 365 [1980]). The statute "places no limit . . . upon the legal theorieswhich may be asserted as a basis for the claim" (id. at 365), and "[t]he third-partycomplaint may be based on a theory of liability different from and independent of the cause ofaction pleaded against the primary defendant" (Zurich Ins. Co. v White, 129 AD2d 388,390 [1987], citing Garrett v Holiday Inns, 58 NY2d 253, 262-263 [1983]).
The third-party defendant's remaining contentions are without merit. Rivera, J.P., Dickerson,Hall and Cohen, JJ., concur. [Prior Case History: 2009 NY Slip Op 33136(U).]