Summary
In Beris v Miller, 128 AD2d 822, 823 [2d Dept 1987], the Court held that "...It cannot be said that the defendant's participation in discovery or moving to strike plaintiff's note of issue for failure to comply with a discovery demand constituted a waiver of lack of personal jurisdiction (internal citations omitted)"; Williams v Uptown Collision, Inc., 243 AD2d 467 [2d Dept 1997], citing Beris v Miller, supra (defendants' counterclaim and participation in discovery did not constitute a waiver of defense of lack of personal jurisdiction).
Summary of this case from Darko v. GuerrinoOpinion
March 30, 1987
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the order is reversed, on the law and the facts, with costs, the motion is granted, and the complaint is dismissed.
Due to the process server's contradictory testimony at the hearing, the plaintiff failed to sustain his burden of proving that service of process was made upon the defendant pursuant to CPLR 308 (2) (see, Anton v. Amato, 101 A.D.2d 819; De Zego v Donald E. Bruhn, P.C., 99 A.D.2d 823, affd 67 N.Y.2d 875). Contrary to Trial Term's finding, however, we find that defendant did not waive the defense of lack of personal jurisdiction, which was asserted in his answer. A lack of such jurisdiction can be asserted although a defense on the merits has also been presented (Gager v. White, 53 N.Y.2d 475, 487; see also, Ortiz v. Booth Mem. Med. Center, 94 A.D.2d 698, 699). Thus, it cannot be said that the defendant's participation in discovery or moving to strike plaintiff's note of issue for failure to comply with a discovery demand constituted a waiver of lack of personal jurisdiction (see, Ortiz v. Booth Mem. Med. Center, supra; Calloway v. National Servs. Indus., 93 A.D.2d 734). Nor may it be said that the defendant's commencement of a related action constituted a waiver of the defense. Lawrence, J.P., Eiber, Kunzeman and Sullivan, JJ., concur.