Summary
In Clarkstown, although service of process was defective, the respondent state commissioner appeared before the trial court in opposition to the petitioner's application for a preliminary injunction.
Summary of this case from Icarus Assocs. v. N.Y.C. Sch. Constr. Auth.Opinion
July 5, 1994
Appeal from the Supreme Court, Rockland County (Meehan, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondent Howe is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because any right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248), and the order is not appealable as of right in any event (see, CPLR 570 [b] [1]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).
Service of process upon the Attorney-General alone did not confer jurisdiction over the respondent Howe (see, CPLR 7804 [c]; 307 [2]; Matter of Quogue Assocs. v. New York State Dept. of Envtl. Conservation, 112 A.D.2d 999, 1000). Under the circumstances of this case, Howe's informal appearance in opposition to the petitioner's application for a preliminary injunction did not constitute a waiver of his jurisdictional objection. Howe raised the issue of lack of personal jurisdiction in opposition to the application for injunctive relief, and thereafter, moved for dismissal prior to the expiration of his time to answer (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 320:2, at 491-492; 2 Weinstein-Korn-Miller, N Y Civ Prac ¶ 320.01; Matter of Jones v Coughlin, 87 A.D.2d 953, 954). Accordingly, the Supreme Court properly granted the motion to dismiss on the ground of lack of personal jurisdiction. Thompson, J.P., O'Brien, Ritter and Krausman, JJ., concur.