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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

 

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