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Dean Parasconda v. Club Mateem

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 30, 2011

DEAN PARASCONDA,
RESPONDENT,
v.
CLUB MATEEM, INC. - VISIONS DOING BUSINESS AS LIPSTICKS AND JOHN DOE (NAME BEING FICTITIOUS AND UNKNOWN AT THIS TIME), APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered June 17, 2010.

Parasconda v Club Mateem, Inc.

Decided on November 30, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order (1) granted the branch of plaintiff's motion seeking leave to reargue his opposition to defendants' prior cross motion to dismiss the complaint and, upon reargument, denied defendants' cross motion, and (2) granted the branch of plaintiff's motion seeking, in the alternative, leave to extend his time to serve the summons and complaint.

ORDERED that the order is modified by providing that the branch of plaintiff's motion seeking, in the alternative, leave to extend his time to serve the summons and complaint is denied as academic; as so modified, the order is affirmed, without costs.

In this action to recover for personal injuries, plaintiff obtained a default judgment following an inquest. Defendants moved pursuant to CPLR 317 and 5015 to vacate the default judgment, alleging that plaintiff had failed to serve process upon them, and requested leave to interpose an answer, but did not move to dismiss the complaint pursuant to CPLR 3211 (a) (8). In his opposition papers, plaintiff attached proof of service of the summons and verified complaint.

By order entered April 23, 2009, the Civil Court granted defendants' motion to vacate the default judgment and restored the matter to the trial calendar. Defendants subsequently failed to interpose an answer.

Thereafter, plaintiff moved to compel disclosure pursuant to CPLR 3124. Defendants opposed the motion, and cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over them. In opposition to defendants' cross motion, plaintiff neglected to attach the aforementioned proof of service.

By order entered March 29, 2010, the Civil Court, among other things, granted defendants' cross motion to dismiss the complaint on the ground that "plaintiff. . . failed to attach proof of service on [defendants]."

Plaintiff then moved pursuant to CPLR 2221 (d) for leave to reargue his opposition to defendants' cross motion to dismiss the complaint and, upon reargument, to deny defendants' cross motion. In the alternative, plaintiff requested an extension of time to serve the summons and complaint pursuant to CPLR 306-b. Plaintiff attached the proof of service he had omitted from his initial opposition to defendants' cross motion.

By order entered June 17, 2010, the Civil Court granted plaintiff's motion and, upon reargument, denied defendants' cross motion. The Civil Court also extended plaintiff's time to serve a copy of the summons and complaint upon defendants. Defendants appeal.

Under CPLR 320 (b), a defendant's appearance in an action "is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under [CPLR 3211 (a) (8)] is asserted by motion or in the answer as provided in rule 3211." An objection to personal jurisdiction is, thus, waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see CPLR 3211 [e]). "Absent the pursuit of either course, a defendant's voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts" (Gager v White, 53 NY2d 475, 488 [1981]). In the instant matter, defendants submitted to the jurisdiction of the court when, in their initial motion to vacate the default judgment they sought leave to interpose an answer rather than seeking to dismiss the complaint for lack of jurisdiction (see Gager, 53 NY2d at 488). Consequently, the Civil Court did not err when it granted the branch of plaintiff's motion seeking leave to reargue his opposition to defendants' prior cross motion to dismiss the complaint and, upon reargument, denied defendants' cross motion.

In view of the foregoing, the branch of plaintiff's motion seeking, in the alternative, leave to extend his time to serve the summons and complaint pursuant to CPLR 306-b is denied as academic (see Kalish v Lindsay, 47 AD3d 889, 892 [2008]). The order is modified accordingly.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: November 30, 2011

20111130

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