| Frederic v Israel |
| 2013 NY Slip Op 02049 [104 AD3d 909] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Paul Jerry Frederic et al., Respondents, v IrvensIsrael et al., Defendants, and TIA Rubbish Removal,Appellant. |
—[*1] Marjory Cajoux, Brooklyn, N.Y., for respondents.
In a consolidated action to recover damages for negligence, the defendant TIARubbish Removal appeals, as limited by its brief, from so much of an order of theSupreme Court, Kings County (Demarest, J.), dated February 9, 2012, as denied thatbranch of its motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against it for lack of personal jurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the appellant's motion which was to dismiss the complaint insofar asasserted against it is granted.
The Supreme Court erred in denying that branch of the motion of T.I.A. of NewYork, Inc., sued herein as TIA Rubbish Removal (hereinafter TIA), which was pursuantto CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against it for lack ofpersonal jurisdiction. It is undisputed that the plaintiffs failed to properly commence theaction against TIA (see CPLR 311; Lakeside Concrete Corp. v Pine HollowBldg. Corp., 104 AD2d 551, 551-552 [1984], affd 65 NY2d 865 [1985]).Although TIA subsequently served a notice of appearance in the action, it was notobligated to challenge the defective service at that time, but was free to thereafter raise itsobjection to personal jurisdiction by a motion to dismiss pursuant to CPLR 3211 (a) (8),or by setting it forth as a defense in its answer as provided for in CPLR 3211 (seeCPLR 320 [b]; CPLR 3211 [e]; Pendergrast v St. Mary's Hosp., 156 AD2d 436,437-438 [1989]; Colbert v International Sec. Bur., 79 AD2d 448, 461 [1981];Balassa v Benteler-Werke A. G., 23 AD2d 664, 665 [1965]). Since TIA movedto dismiss in accordance with CPLR 3211, its service of the notice of appearance did notconstitute a waiver of the jurisdictional objection, and the Supreme Court should havegranted that branch of TIA's motion which was to dismiss the complaint insofar asasserted against it. Mastro, J.P., Rivera, Hall and Miller, JJ., concur. [Prior CaseHistory: 34 Misc 3d 1223(A), 2012 NY Slip Op 50211(U).]