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DEFENDANTS’ COUNSEL WAIVED ANY LACK OF PERSONAL JURISDICTION BY FILING A NOTICE OF APPEARANCE, NOTWITHSTANDING THE STATEMENT IN THE NOTICE THAT JURISDICTIONAL DEFENSES WERE NOT WAIVED (SECOND DEPT).

The Second Department determined defendants’ counsel had waived any lack of personal jurisdiction in this foreclosure action by filing a notice of appearance, notwithstanding the statement in the notice that jurisdictional defenses were not waived:

” The filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction'” … .

Here, the defendants’ counsel filed a notice of appearance dated February 25, 2015, and the defendants did not move to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading … . It is immaterial that the notice of appearance, in addition to requesting that all papers in the action be served on the defendants’ counsel, stated that “[t]he Defendants do not waive any jurisdictional defenses by reason of the within appearance.” This language is not a talisman to protect the defendants from their failure to take timely and appropriate action to preserve their defense of lack of personal jurisdiction. The defendants did not move to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction until January 2016, more than 10 months after filing the notice of appearance. Under these circumstances, the defendants waived any claim that the Supreme Court lacked personal jurisdiction over them in this action. JP Morgan Chase Bank, N.A. v Jacobowitz, 2019 NY Slip Op 07773, Second Dept 10-30-19

 

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