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Papa v. Almeida

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1991
170 A.D.2d 492 (N.Y. App. Div. 1991)

Opinion

February 11, 1991

Appeal from the Supreme Court, Nassau County (Roncallo, J.).


Ordered that on the court's own motion, the plaintiffs' notice of appeal is treated, in part, as an application for leave to appeal from so much of the court's order as directed that a hearing be held to determine whether process was properly served, the application is referred to Justice Brown, and leave to appeal is granted by Justice Brown (see, CPLR 5701 [b] [1]); and it is further,

Ordered that the appeal from so much of the order as denied that branch of the plaintiffs' motion which sought to rescind a prior decision of the court is dismissed, as no appeal lies from an order denying reargument of a decision; and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof which directed that a hearing be held to determine whether process was properly served be held; as so modified, the order is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Nassau County for an inquest; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The defendants Albilio M. Almeida and Liberty Ashes Rubbish Co., Inc., waived the defense of lack of personal jurisdiction by failing to move to dismiss the complaint on that basis (see, CPLR 3211 [a] [8]) and failing to assert that defense in their answer (see, CPLR 3211 [e]; Anastasiou v Fulton St. Pub, 133 A.D.2d 796). Thus, the Supreme Court erred in granting the request for a hearing to determine whether process was properly served.

The Supreme Court did not err, however, in denying the plaintiffs' request for sanctions made pursuant to CPLR 8303-a, as the allegations made in support of that application do not establish that the conduct complained of was frivolous. We note that the plaintiffs are entitled to submit evidence on the issue of sanctions at the inquest by virtue of Justice Robbins's order of April 25, 1989, and that the conduct alleged to be frivolous with respect to that order differs from the conduct that we now find does not rise to the level of frivolity. Brown, J.P., Balletta, Rosenblatt and Ritter, JJ., concur.


Summaries of

Papa v. Almeida

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1991
170 A.D.2d 492 (N.Y. App. Div. 1991)
Case details for

Papa v. Almeida

Case Details

Full title:CHARLES A. PAPA et al., Appellants, v. ABILIO M. ALMEIDA et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 11, 1991

Citations

170 A.D.2d 492 (N.Y. App. Div. 1991)