Opinion
November 21, 1988
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the judgment is affirmed, with costs.
We agree with the trial court's finding that there are no valid defenses preventing specific performance of the contract. The defendants' preanswer cross motion seeking, inter alia, an order declaring the contract null and void and requesting attorneys' fees, without raising an objection to personal jurisdiction, effectively waived any jurisdictional defense (cf., Gager v. White, 53 N.Y.2d 475, 488, cert denied sub nom. Guertin Co. v. Cachat, 454 U.S. 1086; Flaks, Zaslow Co. v. Bank Computer Network Corp., 66 A.D.2d 363, 366-367, appeal dismissed 47 N.Y.2d 951). Moreover, the plaintiff Steven Lebensfeld, while not a signatory to the contract, could seek specific performance of the agreement as a third-party beneficiary since the contract was intended for the mutual benefit of himself and his wife, the plaintiff Jill Lebensfeld (see, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 N.Y.2d 38, 43-45; cf., Zelazny v Pilgrim Funding Corp., 41 Misc.2d 176, 183-184).
Finally, we reject the defendants' contention that the trial court was required to sua sponte disqualify trial counsel on the ground that he was a necessary witness (see, S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437). Bracken, J.P., Kunzeman, Weinstein and Kooper, JJ., concur.