Smith v. Pach

30 A.D.2d 707, 292 N.Y.S.2d 333, 1968 N.Y. App. Div. LEXIS 3671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1968
• Status: Published

Opinion

sOrder of the Supreme Court, Kings County, dated November 1, 1966, which denied appellants’ motion to dismiss the complaint on the ground that the court has not jurisdiction over their persons, affirmed, without costs. The time within which appellants may answer the complaint is extended until 20 days after service of a copy of the order hereon with notice of entry. On September 1, 1963 plaintiff wife, a New York resident, sustained injuries while she was a paying guest at defendants’ camp in Connecticut. On August 5, 1966 a summons and a complaint were personally served on two of the defendants in Connecticut. The other defendants were not served. By notice of motion dated September 19, 1966, defendants moved to dismiss the complaint on the ground that the court did not have jurisdiction of their persons. The motion was not timely made because it was served after the time when service of the answer was required (CPLR 3211, subd. [e]). Good cause for an extension of time to move was not shown (CPLR 2004). Therefore, the motion to dismiss was properly denied. The question of jurisdiction of the persons of defendants may be raised by answer. It appears that all the activities of the camp are conducted in Connecticut. In our opinion, the mere solicitation in this State of business for an out-of-State concern may not be enough, in and of itself, to constitute the transaction of “any business within the state” (CPLR 302, subd. [a], par. 1; Naples v. Janesville Apparel Co., 29 A D 2d 971). However, this issue must be reserved for determination after answer. Beldock, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.