You are here: / / DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF...
,

DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED THE ANSWER TO BE A NOTICE OF APPEARANCE; DEFENDANT DID NOT OBJECT; AN APPEARANCE IS THE EQUIVALENT OF SERVICE OF A SUMMONS; THEREFORE DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant waived any claim of a lack of personal jurisdiction. The plaintiff, rejecting defendant’s answer as untimely, indicated the answer was deemed to be a notice of appearance, which is the equivalent of personal service of the summons:

An appearance of the defendant is equivalent to personal service of the summons upon him or her, unless an objection to jurisdiction pursuant to CPLR 3211(a)(8) is asserted by motion or in the answer … . Here, the plaintiff submitted evidence that the defendant served an answer upon it on or about January 20, 2015. That answer did not assert the defense of lack of personal jurisdiction. The plaintiff rejected the answer as untimely and advised the defendant that it would deem the untimely answer a notice of appearance by the defendant. The defendant did not object to the plaintiff treating her untimely answer as a notice of appearance . The defendant did not assert lack of personal jurisdiction until moving, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint more than two years later … . Therefore, she waived the defense of lack of personal jurisdiction … . Deutsche Bank Natl. Trust Co. v Muzac, 2022 NY Slip Op 02978, Second Dept 5-4-22

Practice Point: Here defendant’s late answer was rejected but plaintiff informed defendant it considered the answer to be a notice of appearance. Defendant did not object. An appearance is equivalent to service of a summons. Therefore defendant waived the lack-of-personal-jurisdiction defense.

 

You might also like
ALTHOUGH THE CORD WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL MAY HAVE BEEN OPEN AND OBVIOUS, DEFENDANTS DID NOT DEMONSTRATE IT WAS NOT INHERENTLY DANGEROUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).
DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.
RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).
IN A TRAFFIC ACCIDENT CASE A PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN ONLY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF THE PLAINTIFF MOVES TO DISMISS THE DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT). ​
ALTHOUGH THE BROKER MAY HAVE REQUESTED THAT PLAINTIFF BE ADDED TO THE INSURANCE POLICY, THE BROKER ALLEGEDLY DID NOT VERIFY THE COVERAGE WAS IN PLACE BEFORE ERRONEOUSLY REPRESENTING TO THE PLAINTIFF THAT IT WAS INSURED; THERE WAS A QUESTION OF FACT WHETHER THE BROKER BREACHED A COMMON-LAW OR CONTRACTUAL DUTY OWED TO PLAINTIFF (SECOND DEPT).
DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND 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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFFS WERE ENTITLED TO AMEND THE BILL OF PARTICULARS TO THE EXTENT THE... THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING...