Johnson v. Boro Medical Center Local No. 563

89 A.D.2d 901, 454 N.Y.S.2d 14, 1982 N.Y. App. Div. LEXIS 18085

Opinion

In an action to recover damages for wrongful death and conscious pain and suffering, defendant appeals, (1) as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated June 1,1981, as denied its motion to dismiss the action for failure to prosecute pursuant to CPLR 3215 (subd [c]), and (2) from a further order of the same court (Shaw, J.), dated August 7, 1981, which denied its motion for summary judgment on the ground of lack of personal jurisdiction. Order dated June 1, 1981 affirmed insofar as appealed from, and order dated August 7, 1981 affirmed, without costs or disbursements. While the assertion of lack of personal jurisdiction as an affirmative defense in the answer to the original complaint preserved this defense (see Rich v Lefkovits, 56 NY2d 276; CPLR 3211, subd [e]), the motion for summary judgment based on this ground was premature since it was made prior to service of an answer to the amended complaint (see CPLR 3211, subd [al; Monroe Abstract & Tit. Corp. v Giallombardo, 54 AD2d 1084; Star Ring Mfg. Co. v Fireman’s Fund Amer. Ins. Cos., 49 AD2d 1007) and while defendant was in default. After service of its answer to the amended complaint, defendant may move for summary judgment on whatever ground it has preserved in the new answer. Titone, J. P., Lazer, Brown and Niehoff, JJ., concur.