Foote v. Foote

Opinion

Foote v Foote

2026 NY Slip Op 04842

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Gary Foote, appellant,

v

Frederick Foote, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-07341, (Index No. 614556/18)

Lara J. Genovesi, J.P.

Linda Christopher

Barry E. Warhit

Lourdes M. Ventura, JJ.

Stan Cohen, Scarsdale, NY, for appellant.

Mitev Law Firm, P.C., Stony Brook, NY (Vesselin V. Mitev of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, for the partition and sale of real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Eileen C. Daly-Sapraicone, J.), dated March 29, 2024. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate two orders of the same court (Roy S. Mahon, J.) dated June 10, 2019, and September 5, 2019, respectively.

ORDERED that the order dated March 29, 2024, is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019, is denied.

In 2018, the plaintiff commenced this action against the defendant, his brother, inter alia, for the partition and sale of certain real property located in Nassau County. On October 31, 2018, the plaintiff's summons with notice purportedly was served upon the defendant by affix and mail (see CPLR 308[4]). In a letter to the Supreme Court dated November 16, 2018, the defendant stated, among other things, that he would be representing himself in this litigation. In December 2018, the plaintiff filed a verified complaint and served copies upon the defendant by mail and email.

In February 2019, the plaintiff moved, inter alia, for summary judgment on the complaint. In a letter to the Supreme Court dated March 8, 2019, the defendant represented that he could not attend oral argument the following week and expressed his interest in selling the property. In an order dated June 10, 2019, the court granted the plaintiff's motion as unopposed. In an order dated September 5, 2019, the court directed the sale of the property and an accounting.

In June 2022, the defendant sold the property.

In October 2023, the defendant moved, among other things, pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019. In an order dated March 29, 2024, the Supreme Court, inter alia, granted that branch of the defendant's motion, vacating the orders dated June 10, 2019, and September 5, 2019, for lack of personal jurisdiction. The plaintiff appeals.

"Pursuant to CPLR 5015(a)(4), '[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of . . . lack of jurisdiction to render the judgment or order'" (Blue Lagoon, LLC v Reisman, 214 AD3d 938, 940).

"A defendant may waive the issue 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" (BAC Home Loans Servicing, L.P. v Davis, 241 AD3d 1231, 1231-1232 [internal quotation marks omitted]). "A defendant may appear informally by actively litigating the action before the court" (id. at 1232 [internal quotation marks omitted]; see USF & G v Maggiore, 299 AD2d 341, 342-343). "When a party becomes 'an actor in a suit' is often a question of degree and of evaluation of the particular facts (Henderson v Henderson, 247 NY 428, 432), but his [or her] participation in the merits is certainly one way in which a defendant will be prevented from thereafter contesting jurisdiction of his [or her] person" (Revona Realty Corp. v Wasserman, 4 AD2d 444, 449; see Henderson v Henderson, 247 NY at 433). By participating in a lawsuit on the merits, a party "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" (BAC Home Loans Servicing, L.P. v Davis, 241 AD3d at 1232 [internal quotation marks omitted]).

Here, the defendant waived the defense of lack of personal jurisdiction by submitting a letter to the Supreme Court addressing the merits of the action and stating that he would represent himself in the action, all without objecting to the court's jurisdiction (see Taveras v City of New York, 108 AD3d 614, 617). Moreover, more than four years after the commencement of this action, the defendant successfully moved to restore the action to the active calendar and sought further affirmative relief without moving to dismiss the complaint for lack of personal jurisdiction (see BAC Home Loans Servicing, L.P. v Davis, 241 AD3d at 1232).

"The 'failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void'" (Deutsche Bank Trust Co. Ams. v Knights, 231 AD3d 1016, 1018, quoting U.S. Bank Trust, N.A. v Johnson, 201 AD3d 841, 842). Here, however, the record demonstrates that the defendant received proper notice of the plaintiff's motion for summary judgment. The affirmation of the plaintiff's counsel representing, under penalty of perjury, that he personally mailed the plaintiff's motion, inter alia, for summary judgment to the address designated by the defendant for that purpose gives rise to a presumption of proper service (see CPLR 2103[b][2]; [c]; Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 130 AD3d 465, 465-466), and the defendant's submissions were insufficient to overcome this presumption. The fact that the date of a separate affirmation of service indicates that the plaintiff's counsel served the proposed order upon the defendant rather than the signed order did not deprive the Supreme Court of jurisdiction to entertain the plaintiff's motion (see Lowinger v Lowinger, 125 AD2d 370, 370).

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court