Opinion
2017–00090 Index No. 14649/15
11-07-2018
Jewel BULKAN, Respondent, v. STEPP'S TOWING SERVICE, INC., et al., Appellants.
Gerber, Ciano, Kelly & Brady, Garden City, N.Y. (William G. Kelly and Michael Harris of counsel), for appellants.
Gerber, Ciano, Kelly & Brady, Garden City, N.Y. (William G. Kelly and Michael Harris of counsel), for appellants.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries and injury to property, the defendants appeal from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated September 30, 2016. The order, insofar as appealed from, denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Stepp's Towing Service, Inc., on the ground of lack of personal jurisdiction.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The defendant Stepp's Towing Service, Inc. (hereinafter Stepp's Towing), served its answer to the complaint on April 26, 2016, asserting, inter alia, an affirmative defense based on lack of proper service. Pursuant to CPLR 3211(e), Stepp's Towing was required to move for judgment on that ground within 60 days after service of its answer, unless undue hardship prevented it from making the motion within that time (see Zucco v. Antin, 257 A.D.2d 421, 422, 682 N.Y.S.2d 354 ; see also Federici v. Metropolis Night Club, Inc., 48 A.D.3d 741, 742, 853 N.Y.S.2d 160 ). The 60–day period was not restarted upon Stepp's Towing's service of an amended answer on June 17, 2016 (see Zucco v. Antin, 257 A.D.2d at 422, 682 N.Y.S.2d 354 ).
Here, Stepp's Towing did not move to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction until August 10, 2016—well after the 60–day period had lapsed (see CPLR 3211[e] ; Zucco v. Antin, 257 A.D.2d at 422, 682 N.Y.S.2d 354 ; see also Deutsche Bank Nat'l Trust Co. v. Acevedo, 157 A.D.3d 859, 861, 69 N.Y.S.3d 693 ; Warsowe Acquisition Corp. v. DeNoble, 116 A.D.3d 949, 950, 983 N.Y.S.2d 859 ; Reyes v. Albertson, 62 A.D.3d 855, 855, 878 N.Y.S.2d 623 ; Federici v. Metropolis Night Club, Inc., 48 A.D.3d at 742, 853 N.Y.S.2d 160 ; Dimond v. Verdon, 5 A.D.3d 718, 719, 773 N.Y.S.2d 603 ). Moreover, Stepp's Towing failed to demonstrate that undue hardship prevented it from timely filing the motion (see Deutsche Bank Natl. Trust Co. v. Acevedo, 157 A.D.3d at 861, 69 N.Y.S.3d 693 ; Warsowe Acquisition Corp. v. DeNoble, 116 A.D.3d at 950, 983 N.Y.S.2d 859 ; Worldcom, Inc. v. Dialing Loving Care, 269 A.D.2d 159, 159, 702 N.Y.S.2d 76 ; Vandemark v. Jaeger, 267 A.D.2d 672, 672, 699 N.Y.S.2d 522 ).
Accordingly, Stepp's Towing waived its objection to personal jurisdiction based upon improper service of the summons and complaint, and that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against Stepp's Towing on that ground was properly denied (see CPLR 3211[e] ).
LEVENTHAL, J.P., CHAMBERS, SGROI and CONNOLLY, JJ., concur.