Opinion
June 11, 1984
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. ¶ Order reversed, with costs, motion denied and matter remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith. ¶ 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 U.S. 555, 561; Lazarow, Rettig Sundel v. Castle Capital Corp., 49 N.Y.2d 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 U.S. 591; Charlotte Nat. Bank v. Morgan, 132 U.S. 141; Buffum v. Chase Nat. Bank, 192 F.2d 58, cert den 342 U.S. 944; Solum v. Farmers Merchants Nat. Bank, 269 Minn. 431; see, also, Freeman v. Bee Mach. Co., 319 U.S. 448; Medicenters of Amer. v. T V Realty Equip. Corp., 371 F. Supp. 1180; Preisler v. Velasquez, 65 Misc.2d 703). Accordingly, Special Term erred in granting the defendant's belated motion to dismiss the complaint on that ground. ¶ 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.