Taitz v. First & Merchants National Bank

102 A.D.2d 850, 476 N.Y.S.2d 627, 1984 N.Y. App. Div. LEXIS 19040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1984
• Status: Published

Opinion

— In an action to recover the reasonable value of legal services rendered to the defendant, plaintiffs appeal from an order of the Supreme Court, Suffolk County (McCarthy, J.), dated March 21,1983, which, inter alia, granted the defendant’s motion to dismiss the complaint. j| Order reversed, with costs, motion denied and matter remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith. H Under the circumstances of this case, defendant’s interposition of an answer, containing counterclaims, without asserting its right under former section 94 of title 12 of the United States Code to be sued only in the district or county in which it is established (see Mercantile Nat. Bank v Langdeau, 371 US 555, 561; Lazarow, Rettig & Sundel v Castle Capital Corp., 49 NY2d 508, 512) constituted a waiver of its right to compel a dismissal predicated on the violation of that venue provision (see Michigan Nat. Bank v Robertson, 372 US 591; Charlotte Nat. Bank v Morgan, 132 US 141; Buffum v Chase Nat. Bank, 192 F2d 58, cert den 342 US 944; Solum v Farmers & Merchants Nat. Bank, 269 Minn 431; see, also, Freeman v Bee Mach. Co., 319 US 448; Medicenters ofAmer. v T & V Realty & Equip. Corp., 371 F Supp 1180; Preisler v Velasquez, 65 Mise 2d 703). Accordingly, Special Term erred in granting the defendant’s belated motion to dismiss the complaint on that ground. H In light of this determination, the matter must be remitted to the Supreme Court, Suffolk County, to pass upon the plaintiffs’ cross motion, which was denied as moot in view of its dismissal of the complaint. Gibbons, J. P., Bracken, O’Connor and Niehoff, JJ., concur.