Domansky v. Berkovitch

Jun 2, 1998
Versions:251 A.D.2d 3
673 N.Y.S.2d 646
1998 N.Y. App. Div. LEXIS 6369

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 31, 1997, which, inter alia, granted plaintiffs’ motion to strike the first, second, third, tenth, eleventh and twelfth affirmative defenses of defendants’ amended answer, unanimously affirmed, with costs.

The IAS Court properly struck defendants’ affirmative defenses asserting that the court lacked both subject matter jurisdiction and personal jurisdiction over defendants. In this connection, we note first that the amended complaint was not, as defendants contend, a nullity because plaintiffs never sought leave to amend the complaint by written notice of motion. Plaintiffs’ oral request to add additional claims and parties was granted by the IAS Court during a session of court at which defendants’ counsel were present and had a full and fair opportunity to object to the relief requested. The court’s explicit grant, on the record, of plaintiffs’ request for leave to amend was binding upon the parties, even though not reduced to a formal written order (see, Matter of Grisi v Shainswit, 119 AD2d 418, 421-422) and could have been appealed from provided only that defendants had had the relevant portions of the conference transcript “so-ordered” (supra, at 422).

Nor was the IAS Court deprived of jurisdiction by reason of the circumstance that plaintiffs filed their summons and complaint with the court clerk subsequent to serving them upon defendants, since the added defendants’ reliance upon this defect in the proper sequence of filing and service was waived by their failure to raise the issue of personal jurisdiction in their responsive pleading (CPLR 3211 [e]) and by their appear anee in the action (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714).

We have considered defendants’ remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Milonas, Rosenberger, Nardelli and Williams, JJ.