Opinion
2013-03-27
Paul Jerry FREDERIC, et al., respondents, v. Irvens ISRAEL, et al., defendants, TIA Rubbish Removal, appellant.
Wolf Haldenstein Adler Freeman & Herz LLP, New York, N.Y. (Eric B. Levine and Mark N. Antar of counsel), for appellant. Marjory Cajoux, Brooklyn, N.Y., for respondents.
Wolf Haldenstein Adler Freeman & Herz LLP, New York, N.Y. (Eric B. Levine and Mark N. Antar of counsel), for appellant. Marjory Cajoux, Brooklyn, N.Y., for respondents.
In a consolidated action to recover damages for negligence, the defendant TIA Rubbish Removal appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated February 9, 2012, as denied that branch of its motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar 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 as asserted against it is granted.
The Supreme Court erred in denying that branch of the motion of T.I.A. of New York, Inc., sued herein as TIA Rubbish Removal (hereinafter TIA), which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction. It is undisputed that the plaintiffs failed to properly commence the action against TIA ( seeCPLR 311; Lakeside Concrete Corp. v. Pine Hollow Bldg. Corp., 104 A.D.2d 551, 551–552, 479 N.Y.S.2d 256,affd.65 N.Y.2d 865, 493 N.Y.S.2d 309, 482 N.E.2d 1225). Although TIA subsequently served a notice of appearance in the action, it was not obligated to challenge the defective service at that time, but was free to thereafter raise its objection 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 A.D.2d 436, 437–438, 548 N.Y.S.2d 711;Colbert v. International Sec. Bur., 79 A.D.2d 448, 461, 437 N.Y.S.2d 360;Balassa v. Benteler–Werke A.G., 23 A.D.2d 664, 665, 257 N.Y.S.2d 211). Since TIA moved to dismiss in accordance with CPLR 3211, its service of the notice of appearance did not constitute a waiver of the jurisdictional objection, and the Supreme Court should have granted that branch of TIA's motion which was to dismiss the complaint insofar as asserted against it.