Opinion
1350 CA 18–01000
02-01-2019
Nathan M. ZIVERTS, Plaintiff–Respondent, v. Sullivan O. WUNDERLICH, Defendant–Appellant.
BARTH SULLIVAN BEHR, SYRACUSE (DANIEL CARTWRIGHT OF COUNSEL), FOR DEFENDANT–APPELLANT. WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BARTH SULLIVAN BEHR, SYRACUSE (DANIEL CARTWRIGHT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this action to recover damages for personal injuries sustained by plaintiff as the result of a motor vehicle collision, defendant appeals from an order that denied his motion to dismiss the complaint for lack of personal jurisdiction based on improper service of process. Defendant contends that Supreme Court erred in determining that he waived that objection pursuant to CPLR 3211(e) by failing to move for judgment on that ground within 60 days of serving his answer inasmuch as he demonstrated undue hardship justifying an extension of the 60–day period. We reject that contention and affirm.
It is undisputed that defendant was not properly served with the complaint. Defendant nevertheless learned of the action and interposed an answer, raising lack of personal jurisdiction based on improper service as an affirmative defense. Having done so, his failure to move for judgment on that ground within 60 days of serving his answer amounted to a waiver of that objection, notwithstanding that plaintiff had remaining time to effect proper service pursuant to CPLR 306–b, unless defendant demonstrated an undue hardship justifying an extension of the 60–day period (see CPLR 3211[e] ). Here, defendant offered no reason why he could not have moved for judgment within the 60–day period. Thus, we conclude that the court properly denied defendant's motion (see CPLR 3211[e] ; Doe v. D'Angelo, 154 A.D.3d 1300, 1301, 62 N.Y.S.3d 680 [4th Dept. 2017] ; Anderson & Anderson, LLP–Guangzhou v. Incredible Invs. Ltd., 107 A.D.3d 1520, 1521, 968 N.Y.S.2d 281 [4th Dept. 2013] ).