Beris v. Miller

Appellate Division of the Supreme Court of New York

Beris v. Miller

128 A.D.2d 822, 513 N.Y.S.2d 744, 1987 N.Y. App. Div. LEXIS 44515

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 30, 1987

StatusPublished

Cited by9 cases

This text of 128 A.D.2d 822 (Beris v. Miller) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beris v. Miller, 128 A.D.2d 822, 513 N.Y.S.2d 744, 1987 N.Y. App. Div. LEXIS 44515 (N.Y. Ct. App. 1987).

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Opinion

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Berkowitz, J.), dated May 21, 1986, which denied his motion to dismiss the complaint for lack of personal jurisdiction.

Ordered that the order is reversed, on the law and the facts, with costs, the motion is granted, and the complaint is dismissed.

Due to the process server’s contradictory testimony at the [823]*823hearing, the plaintiff failed to sustain his burden of proving that service of process was made upon the defendant pursuant to CPLR 308 (2) (see, Anton v Amato, 101 AD2d 819; De Zego v Donald E. Bruhn, P. C, 99 AD2d 823, affd 67 NY2d 875). Contrary to Trial Term’s finding, however, we find that defendant did not waive the defense of lack of personal jurisdiction, which was asserted in his answer. A lack of such jurisdiction can be asserted although a defense on the merits has also been presented (Gager v White, 53 NY2d 475, 487; see also, Ortiz v Booth Mem. Med. Center, 94 AD2d 698, 699). Thus, it cannot be said that the defendant’s participation in discovery or moving to strike plaintiff’s note of issue for failure to comply with a discovery demand constituted a waiver of lack of personal jurisdiction (see, Ortiz v Booth Mem. Med. Center, supra; Calloway v National Servs. Indus., 93 AD2d 734). Nor may it be said that the defendant’s commencement of a related action constituted a waiver of the defense. Lawrence, J. P., Eiber, Kunzeman and Sullivan, JJ., concur.

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In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Berkowitz, J.), dated May 21, 1986, which denied his motion to dismiss the complaint for lack of personal jurisdiction.

Ordered that the order is reversed, on the law and the facts, with costs, the motion is granted, and the complaint is dismissed.

Due to the process server’s contradictory testimony at the [823]*823hearing, the plaintiff failed to sustain his burden of proving that service of process was made upon the defendant pursuant to CPLR 308 (2) (see, Anton v Amato, 101 AD2d 819; De Zego v Donald E. Bruhn, P. C, 99 AD2d 823, affd 67 NY2d 875). Contrary to Trial Term’s finding, however, we find that defendant did not waive the defense of lack of personal jurisdiction, which was asserted in his answer. A lack of such jurisdiction can be asserted although a defense on the merits has also been presented (Gager v White, 53 NY2d 475, 487; see also, Ortiz v Booth Mem. Med. Center, 94 AD2d 698, 699). Thus, it cannot be said that the defendant’s participation in discovery or moving to strike plaintiff’s note of issue for failure to comply with a discovery demand constituted a waiver of lack of personal jurisdiction (see, Ortiz v Booth Mem. Med. Center, supra; Calloway v National Servs. Indus., 93 AD2d 734). Nor may it be said that the defendant’s commencement of a related action constituted a waiver of the defense. Lawrence, J. P., Eiber, Kunzeman and Sullivan, JJ., concur.

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Bluebook (online)

128 A.D.2d 822, 513 N.Y.S.2d 744, 1987 N.Y. App. Div. LEXIS 44515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beris-v-miller-nyappdiv-1987.

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