IBJ Schroder Bank & Trust Co. v. Zaitz

170 A.D.2d 579

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1991
• Status: Published

Opinion

In an action to recover accrued interest allegedly due upon two promissory notes, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Wood, J.), dated September 1, 1989, which granted the defendant’s application, in effect, for leave to enter a judgment dismissing the action, and (2) a judgment of the same court, entered September 5, 1989, which dismissed the action.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, and the defendant’s application for leave to enter a judgment dismissing the action is denied; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order 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, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Contrary to the defendant’s contention, the plaintiff’s reservice of the summons and complaint during the pendency of this action effectively obviated her jurisdictional objection to the action (see, Sirota v Kloogman, 140 AD2d 426; Heusinger v Russo, 96 AD2d 883; Dashew v Cantor, 85 AD2d 619). The Supreme Court thus had no basis upon which to enter judgment dismissing the action for lack of in personam jurisdiction over the defendant (see, Sirota v Kloogman, supra). Brown, J. P., Fiber, Rosenblatt and Ritter, JJ., concur.