Mullare Smith Co. v. Jet Drive General Marine Contracting Co.

72 A.D.2d 576, 421 N.Y.S.2d 28, 1979 N.Y. App. Div. LEXIS 13669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1979
• Status: Published

Opinion

In an action to recover property damages predicated on theories of conversion and negligence, defendants Jet Drive General Marine Contracting Co., Inc., and Richard Rivara appeal from so much of an order of the Supreme Court, Queens County, dated April 16, 1979, as upheld service of process upon defendant Rivara and denied the cross motion of the defendant corporation, inter alia, to dismiss the complaint for failure to obtain jurisdiction over it or for failure to state a cause of action. Order affirmed insofar as appealed from, with $50 costs and disbursements. The record presents substantial issues of fact concerning the existence of a rental agreement for the sunken barge and the claimed negligence of the appellants in causing the barge to sink. Summary judgment was therefore properly denied. The complaint is also not rendered defective for its inclusion of potentially inconsistent causes of action (see CPLR 3014). Moreover, jurisdiction was obtained over the appellant corporation when it appeared by service of its answer without raising any jurisdictional objection in the pleading (see CPLR 320, subd [b]; 3211, subd [e]). Even if this appearance was made in error, said appellant has shown no prejudice to any substantial right sufficient to require relief from such mistake (see CPLR 2001). The propriety of the service on appellant Richard Rivara in his individual capacity, never having been raised at Special Term, is not reviewable on this appeal (see Matter of Glazer v Hankin, 50 AD2d 924). Cohalan, J. P., Margett, Martuscello and Gibbons, JJ., concur.