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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 12, 2019

Attorney’s Notice of Appearance Has Same Effect As An Answer for Purposes of Challenging Jurisdiction

On August 7, 2019, the Second Department issued a decision in Mid-Island Mtge. Corp. v. Johnson, 2019 NY Slip Op. 06081, holding that an attorney’s appearance has the same effect as an answer for purposes of challenging jurisdicsion, explaining:

Pursuant to CPLR 320(a), a defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. With the exception of certain circumstances not relevant here (see CPLR 320[c]), an appearance of the defendant is equivalent to personal service of the summons upon her or him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of [CPLR] 3211 is asserted by motion or in the answer as provided in CPLR 3211. By statute, a party may appear in an action by attorney, and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction. Thus, the filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.

Here, Cordella appeared in the action by her counsel’s filing of the notice of appearance dated May 23, 2011. The record does not reflect that Cordella asserted lack of personal jurisdiction in a responsive pleading, and she did not move to dismiss the complaint for lack of personal jurisdiction until several years after appearing in the action, after the judgment of foreclosure and sale had been issued. Under such circumstances, Cordella waived any claim that the Supreme Court lacked personal jurisdiction over her in this action. Accordingly, we agree with the Supreme Court’s denial of Cordella’s motion to stay the sale of the subject mortgaged property, vacate the judgment of foreclosure and sale, and dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

(Internal quotations and citations omitted).

This decision illustrates an issue that often arises in commercial litigation in New York. Whether the defendant is located on the other side of the world or across the Hudson in New Jersey, a New York court cannot assert jurisdiction over the defendant (that is, hear a case against it) unless there is a proper connection between the defendant and New York. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether there is jurisdiction over you, or over a party with which you are having a dispute, in New York.

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