Alaska Seaboard Partners v. Anninos

Appellate Division of the Supreme Court of the State of New York

Mar 15, 1999

Versions:259 A.D.2d 572

686 N.Y.S.2d 500

1999 N.Y. App. Div. LEXIS 2499

In an action to foreclose a mortgage, the defendants Alecos Milionis and Mary Milionis appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), entered April 20, 1998, as granted the plaintiffs motion for summary judgment and appointed a Referee to compute, and denied their motion for summary judgment dismissing the complaint insofar as asserted against them. The notice of appeal from a decision and order of the same court dated March 6, 1998, is deemed a premature notice of appeal from the order entered April 20, 1998 (see, CPLR 5520 [c]).

Ordered that the order is affirmed insofar as appealed from, with costs.

This mortgage foreclosure action was commenced in 1992. In their answer, the appellants asserted as an affirmative defense the lack of personal jurisdiction based on improper service of the summons and complaint. On or about December 10, 1997, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them, based on that affirmative defense. The Supreme Court properly concluded that *573the appellants waived the defense of improper service by failing to move to dismiss on that ground within 60 days of January 1, 1997, the effective date of the 1996 amendment to CPLR 3211 (e) (see, Wade v Byung Yang Kim, 250 AD2d 323; Fleet Bank v Riese, 247 AD2d 276). Consequently, we do not reach the issue of whether service was properly effected.

The appellants’ objections to a second service of the summons and complaint attempted by the plaintiff are academic, and their remaining contentions are without merit. Bracken, J. P., Sullivan, Altman and Friedmann, JJ., concur.