Resolution Trust Corp. v. O'Neill

181 A.D.2d 668, 581 N.Y.S.2d 360, 1992 N.Y. App. Div. LEXIS 2998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1992
• Status: Published

Opinion

— In an action for summary judgment in lieu of complaint pursuant to CPLR 3213, to recover the principal sum of $96,341.68 based upon a Florida judgment dated September 8, 1988, entered upon the defendant’s default in answering, the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated March 29, 1990, which denied summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate judgment.

The plaintiff moved in the Supreme Court, Nassau County, for summary judgment in lieu of complaint based on a default money judgment that was entered against the defendant by the Circuit Court of the Fifteenth Circuit of the State of Florida. The Supreme Court denied the motion on the ground that a triable issue of fact existed as to whether the Florida court had properly exercised in personam jurisdiction over the defendant. This was error.

Pursuant to Florida Rules of Civil Procedure 1.140 (h), which is controlling in this matter (see, Gladding Corp. v Balco-Pedrick Parts Corp., 76 AD2d 1), a party waives all defenses and objections that he does not present by motion or in his responsive pleadings. The defendant moved in the Florida court on two occasions to have the default judgment set aside, but never raised the defense of lack of in personam jurisdiction. Thus, the defendant has waived this defense. Balletta, J. P., Rosenblatt, Miller and Ritter, JJ., concur.