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NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE.

The Second Department determined a notice of appearance filed on behalf of a defendant (Dariusz Lojek) before he was made a party waived any subsequent defense alleging lack of personal jurisdiction. The subsequent amended summons and complaint naming Lojek as a party was deemed a nullity. After the statute of limitations passed, Lojek moved to dismiss:

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On August 22, 2011, the plaintiff commenced this action to recover damages for personal injuries against Asconcio, Inter Euro, Darek Cake Company, and the Grimaldi Bakery Co. Dariusz Lojek, the principal of both Inter Euro and Darek Cake, Inc., was not initially named as a defendant in the action. However, on June 20, 2012, Dariusz Lojek’s attorney filed a notice of appearance on his behalf, and demanded “that all Notices and Demands in this action be served upon the undersigned attorney at the address set forth below.” In a letter to the attorneys for the plaintiff and the defendants in the action, Dariusz Lojek’s attorney asked for “copies of any legal papers which you may have already filed in this action,” and requested to be advised of “pending appearances.”

Over three months later, on September 24, 2012, the plaintiff filed a supplemental summons and amended complaint deleting the defendant Grimaldi Bakery Co. from the caption, correcting the name of the defendant Darek Cake Company to Darek Cake, Inc., and adding Marzena Lojek and Dariusz Lojek, the alleged principals of Inter Euro and Darek Cake, Inc., as defendants in the action. Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek were served with the supplemental summons and amended complaint in December 2012. …

Since the plaintiff failed to obtain leave of court or a stipulation between the parties before serving and filing the supplemental summons and amended complaint, that service may be deemed a nullity, and the amended complaint dismissed insofar as asserted against the additional parties for lack of personal jurisdiction … .

However, lack of personal jurisdiction may be waived … . Under the circumstances of this case, by his appearance in June 2012 and his voluntary participation in the action, Dariusz Lojek submitted to the jurisdiction of the court and waived any defense of lack of personal jurisdiction within the applicable statute of limitations … . Jaramillo v Asconcio, 2017 NY Slip Op 05073, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/ATTORNEYS (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/NOTICE OF APPEARANCE (WAIVER OF JURISDICTIONAL DEFENSE,  NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)

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