Opinion
October 30, 1995
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that on the court's own motion, Todd Bishop's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the appeal from the order dated November 3, 1994, is dismissed, without costs or disbursements, as that order was superseded by the order dated December 16, 1994, made upon reargument; and it is further,
Ordered that the order dated November 3, 1994, is affirmed insofar as cross-appealed from, without costs or disbursements; and it is further,
Ordered that the order dated December 16, 1994, is affirmed insofar as appealed from, without costs or disbursements.
We reject the plaintiffs' contention that the defendant Todd Bishop waived, or should be estopped from asserting, the affirmative defense of lack of personal jurisdiction based on improper service. The plaintiffs are not entitled to serve an amended complaint on Bishop and avoid the defense of lack of personal jurisdiction based on improper service merely because Bishop served a third-party complaint (cf., Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473).
Finally, we reject Bishop's contention on the cross appeal that the affidavit of service was improper on its face, and thus, the complaint should have been dismissed. The order dated November 3, 1994, which set the matter down for a hearing, is not appealable as of right (see, Matter of Manufacturers Hanover Trust v Porcelli, 111 A.D.2d 175; Palma v. Palma, 101 A.D.2d 812). Nevertheless, leave to appeal is granted pursuant to CPLR 5701 (c). The Supreme Court correctly determined that an issue of fact has been raised with regard to service and correctly ordered a hearing to determine the validity of the service of process. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.