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ALTHOUGH DEFENDANT HAD JURISDICTIONAL GROUNDS FOR VACATING THE JUDGMENT, HE WAIVED ANY JURISDICTIONAL ISSUES BY PARTICIPATING IN AN EXAMINATION UNDER OATH BEFORE MOVING TO VACATE THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant had waived any jurisdictional (improper service and notice) issues by participating in an examination under oath in connection with the underlying renewal-judgment enforcement proceeding. Defendant had defaulted in the renewal-judgment proceeding and summary judgment had been awarded to plaintiff. After participating in the examination under oath, the defendant moved to vacate the renewal judgment, arguing the court lacked jurisdiction to render the judgment. Supreme Court granted the motion:

“‘[I]mproper service of a motion provides a complete excuse for default on a motion and deprives the court of jurisdiction to entertain the motion'” … , and “‘the failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015(a)(4)'” … .

However, “‘[w]hen a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court'” … .

Here, the defendant made an informal appearance in the action by appearing for the examination under oath in connection with the enforcement of the renewal judgment, which went to the merits of this action. Bharath v Sitaram, 2026 NY Slip Op 00872, Second Dept 2-18-26

Practice Point: Here defendant waived any jurisdictional issues related to improper service and notice by participating in an examination under oath.

 

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