Walsh v. 72ND Street East Corporation

Full title: CLARE L. WALSH, Plaintiff, v. 72ND STREET EAST CORPORATION et al.…

Court: Civil Court of the City of New York, New York County, Special Term

Date published: Apr 13, 1965

48 Misc. 2d 78 (N.Y. Civ. Ct. 1965)

264 N.Y.S.2d 345

Opinion

April 13, 1965

Barry, Treanor, Shandell Zachary ( John S. Zachary of counsel), for plaintiff.

Bernard Helfenstein and Joel P. Kastein for defendants.

BERNARD NADEL, J.

A summons without indorsement or complaint attached thereto was served upon the defendants. The attorney for the plaintiff received a notice of appearance on behalf of the defendants, and a demand for a copy of the complaint was made. Thereafter a stipulation was made extending the time to serve the complaint.

After the complaint was served, the defendants make this motion to dismiss the action on the ground that the court lacks jurisdiction because the plaintiff failed to serve his complaint with the summons, pursuant to section 902 of the New York City Civil Court Act.

Had the defendants moved to dismiss after the service of the summons and prior to their appearance, demand for a copy of the complaint and extension of the time to serve the complaint, Paskus, Gordon Hyman v. Peck ( 41 Misc.2d 1004) would apply and the motion to dismiss would be proper.

However, by serving a notice of appearance and demand for a copy of the complaint, and entering into a stipulation extending the time to serve the complaint, the defendants have knowingly and intentionally waived the limited jurisdictional defect, and have conferred upon the court the jurisdiction that it theretofore lacked.

In Baum v. Halperin (169 N.Y.S. 489) the Appellate Term, First Department, stated: "The first point raised is that the court never acquired jurisdiction. No complaint was served or filed, and there was no statement of the nature and substance of plaintiff's cause of action indorsed on or annexed to the summons. The court, therefore, did not acquire jurisdiction by the service of the summons. Steffens v. Martin, 100 Misc. Rep. 263, 165 N.Y. Supp. 445. However, before the order denying defendant's motion to vacate the service of the summons was entered, the defendant filed a notice of general appearance. This conferred on the court the jurisdiction that it theretofore lacked."

Accordingly, the motion is denied, and the defendants may plead to the complaint within 10 days after service of a copy of this order together with notice of entry thereof upon their attorney.