Opinion
October 6, 1997
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the complaint is dismissed.
The court erred in holding that the defendants waived the defense of lack of personal jurisdiction asserted in their answer. Neither their counterclaim for indemnification ( see, Textile Technology Exch. v. Davis, 81 N.Y.2d 56, 58-59) nor their participation in discovery ( see, Calloway v. National Servs. Indus., 93 A.D.2d 734, affd 60 N.Y.2d 906; see also, Beris v. Miller, 128 A.D.2d 822; McNeely v. Harrison, 208 A.D.2d 909) constituted a waiver of that defense. Since the court had no personal jurisdiction over the defendants, the motion to dismiss should have been granted.
Mangano, P.J., Rosenblatt, Pizzuto and Luciano, JJ., concur.