You are here: / / A CROSS-MOTION TO DISMISS THE COMPLAINT PURSUANT TO CPLR 3215 (C) IS NOT...
,

A CROSS-MOTION TO DISMISS THE COMPLAINT PURSUANT TO CPLR 3215 (C) IS NOT AN APPEARANCE AND DOES NOT WAIVE THE LACK-OF-JURISDICTION DEFENSE; INFANT DEFENDANT IN THIS FORECLOSURE ACTION WAS NOT SERVED IN ACCORDANCE WITH CPLR 309; THE COMPLAINT SHOULD HAVE BEEN DISMISSED FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the infant defendant’s (A.M.’s) cross-motion to dismiss the foreclosure complaint for lack of personal jurisdiction should have been granted:

The defendant James McGown purchased the subject property on January 25, 2006. On March 15, 2007, he executed a mortgage encumbering the subject property in favor of Mortgage Electronic Registration Systems, Inc. (… MERS) … . MERS subsequently assigned the mortgage to the plaintiff. McGown failed to make a payment due under the terms of the mortgage … . … McGown executed a deed purportedly conveying the subject property to his daughter, the infant A.M., who at the time was less than one year old. * * *

… A.M. did not waive the defense of personal jurisdiction by cross-moving to dismiss the complaint pursuant to CPLR 3215(c). “‘A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss'” … . However, certain types of limited involvement in an action by a defendant do not waive jurisdictional defenses, including “cross-moving to dismiss the complaint pursuant to CPLR 3215(c), as such a motion by a defendant ‘does not constitute an appearance in the action'” … . …

… [T]he process server attested that he served A.M. pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to the “housekeeper” at A.M.’s dwelling place and then completing the requisite mailing. … [A]lthough McGown was served individually, he was not served … as an individual and representative of A.M. … . Since neither of these methods of service complied with the requirements of CPLR 309, the present action was jurisdictionally defective as asserted against A.M. US Bank N.A. v McGown, 2021 NY Slip Op 06879, Second Dept 12-8-21

 

You might also like
Counsel’s Expressed Objections to His Client’s Motion to Withdraw His Guilty Plea Required the Assignment of New Counsel
NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF.
HEARSAY STATEMENTS ATTRIBUTED TO PLAINTIFF’S DECEDENT IN THIS MEDICAL MALPRACTICE ACTION NOT ADMISSIBLE AS ADMISSIONS OR BUSINESS RECORDS; THE DEAD MAN’S STATUTE PROHIBITED TESTIMONY ABOUT THE HEARSAY STATEMENTS; DEFENSE VERDICT REVERSED, NEW TRIAL ORDERED (SECOND DEPT). ​
INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT).
ERRONEOUS SANDOVAL RULING REQUIRED REVERSAL.
COUNSELING OR TREATMENT SHOULD NOT BE MADE A CONDITION FOR ANY FUTURE MODIFICATION OF PARENTAL ACCESS; HOWEVER COUNSELING AND TREATMENT MAY BE MADE A COMPONENT OF CURRENT PARENTAL ACCESS (SECOND DEPT).
ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).
DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S CONTRACT BUT DID NOT TORTIOUSLY INTERFERE WITH PLAINTIFF’S BUSINESS RELATIONS OR ENGAGE IN UNFAIR COMPETITION; THE ELEMENTS OF THE THREE CAUSES OF ACTION EXPLAINED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS SIDEWAIK ICE-AND-SNOW SLIP AND FALL CASE, THE MUNICIPALITY DEMONSTRATED... PLAINTIFF WAS NOT ENTITLED TO AN EASEMENT BY IMPLICATION FOR A DRIVEWAY LEADING...