O'Fennell Corp. v. O'Fennell's of Pine Hill, Inc.

188 A.D.2d 981

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1992
• Status: Published

Opinion

Mercure, J.

Appeal from a decision of the Supreme Court (Connor, J.), entered August 22, 1991 in Ulster County, which, inter alia, partially granted the motion of defendant O’Fennell’s of Pine Hill, Inc. for an extension of time to appear.

Plaintiff commenced this action against defendant O’Fennell’s of Pine Hill, Inc. (hereinafter defendant) in January 1991 by delivery of the summons and complaint to the Secretary of State pursuant to Business Corporation Law § 306 (b) (1). On May 8, 1991, defendant moved for an order extending its time to appear or plead (CPLR 3012 [d]) upon the grounds that it had not received notice of the commencement of the action until April 26, 1991 and that plaintiff had not acquired in personam jurisdiction over it. At an August 22, 1991 conference, Supreme Court rendered an oral decision granting the motion to the extent of allowing defendant a period of 20 days within which to serve an answer. At the same time, Supreme Court sua sponte determined that plaintiff had obtained personal jurisdiction over defendant, thereby depriving defendant of the opportunity to raise the jurisdictional objection in its answer or by motion to dismiss the complaint. Defendant appeals.

Although Supreme Court clearly erred in its premature consideration of the merits of defendant’s jurisdictional defense, it appears that Supreme Court’s August 22, 1991 decision was never reduced to an order. Inasmuch as defendant is attempting to appeal from a decision, we are required to dismiss the appeal (see, CPLR 5512 [a]; Bernstein v Bernstein, 122 AD2d 96; Burometto v Town of Schodack, 85 AD2d 805, appeal dismissed 55 NY2d 1036; 1 Newman, NY Appellate Practice § 3.09 [1]).

Mikoll, J. P., Levine, Mahoney and Casey, JJ., concur. Ordered that the appeal is dismissed, without costs.