Maloney v. Braeside Apartments Co.

Appellate Division of the Supreme Court of New York

Maloney v. Braeside Apartments Co.

193 A.D.2d 1112, 598 N.Y.S.2d 640, 1993 N.Y. App. Div. LEXIS 5755

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

DecidedMay 28, 1993

StatusPublished

Cited by4 cases

This text of 193 A.D.2d 1112 (Maloney v. Braeside Apartments Co.) 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.

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Maloney v. Braeside Apartments Co., 193 A.D.2d 1112, 598 N.Y.S.2d 640, 1993 N.Y. App. Div. LEXIS 5755 (N.Y. Ct. App. 1993).

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Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion to dismiss the complaint and cross claims against defendant N. Lawrence Caruso & Associates, P. C. (Caruso PC). Caruso PC contends that its motion should have been granted because plaintiff’s cause of action did not accrue until after Caruso PC’s corporate existence was dissolved. Caruso PC failed to plead that defense, and failed to raise it on the record, thus waiving it (see, Martin v Rockwell Graphic Sys., 192 AD2d 1124; Schaffer Stores Co. v Grand Union Co., 84 AD2d 614, appeal dismissed 56 NY2d 570; Pace v Perk, 81 AD2d 444; see generally, CPLR 3018 [b]). Whether Architectural Associates of Syracuse is a continuation of Caruso PC and thereby responsible for the latter’s liabilities is not an issue before this Court. Architectural Associates of Syracuse is not a party to this action.

Supreme Court properly dismissed the complaint and cross claims against N. L. Caruso. Delivery of the summons and complaint to Caruso’s former place of business, which he had ceased to use when he sold the business some three years earlier, was insufficient to confer personal jurisdiction upon Caruso (see, Continental Hosts v Levine, 170 AD2d 430). (Appeals from Order of Supreme Court, Onondaga County, Mordue, J.—Dismiss Complaint.) Present—Denman, P. J., Pine, Balio, Fallon and Boehm, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion to dismiss the complaint and cross claims against defendant N. Lawrence Caruso & Associates, P. C. (Caruso PC). Caruso PC contends that its motion should have been granted because plaintiff’s cause of action did not accrue until after Caruso PC’s corporate existence was dissolved. Caruso PC failed to plead that defense, and failed to raise it on the record, thus waiving it (see, Martin v Rockwell Graphic Sys., 192 AD2d 1124; Schaffer Stores Co. v Grand Union Co., 84 AD2d 614, appeal dismissed 56 NY2d 570; Pace v Perk, 81 AD2d 444; see generally, CPLR 3018 [b]). Whether Architectural Associates of Syracuse is a continuation of Caruso PC and thereby responsible for the latter’s liabilities is not an issue before this Court. Architectural Associates of Syracuse is not a party to this action.

Supreme Court properly dismissed the complaint and cross claims against N. L. Caruso. Delivery of the summons and complaint to Caruso’s former place of business, which he had ceased to use when he sold the business some three years earlier, was insufficient to confer personal jurisdiction upon Caruso (see, Continental Hosts v Levine, 170 AD2d 430). (Appeals from Order of Supreme Court, Onondaga County, Mordue, J.—Dismiss Complaint.) Present—Denman, P. J., Pine, Balio, Fallon and Boehm, JJ.

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193 A.D.2d 1112, 598 N.Y.S.2d 640, 1993 N.Y. App. Div. LEXIS 5755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maloney-v-braeside-apartments-co-nyappdiv-1993.

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