Greenpoint Bank v. Schiffer

266 A.D.2d 262, 698 N.Y.S.2d 279, 1999 N.Y. App. Div. LEXIS 11298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants appeal from (1) an order of the Supreme Court, Westchester County (DiBlasi, J.), dated October 17, 1997, which, inter alia, denied their cross motion to dismiss the complaint insofar as asserted against them on the ground of improper service, (2) an order of the same court, dated October 21, 1997, which, inter alia, granted the plaintiffs motion for summary judgment against them, and (3) a judgment of foreclosure and sale of the same court, dated May 5, 1998.

Ordered that the appeals from the orders are dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The appellants waived their defense of lack of personal jurisdiction based on improper service by failing to move for a judgment on that ground within 60 days after service of their answer, and they failed to allege any undue hardship warranting an extension of the statutory period (see, CPLR 3211 [e]). Therefore, the Supreme Court properly denied their cross motion to dismiss the complaint insofar as asserted against them on the ground of improper service.

The appellants’ remaining contentions are without merit. S. Miller, J. P., Sullivan, Krausman and H. Miller, JJ., concur.