Beris v. Miller
| Decision Date | 30 March 1987 |
| Parties | Jeffrey E. BERIS, Respondent, v. Michael A. MILLER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gordon & Silber, P.C., New York City (Peter P. Traub, Jr., of counsel), for appellant.
Grau and Weiner, P.C., New York City (Morton Weiner, of counsel), for respondent.
Before LAWRENCE, J.P., and EIBER, KUNZEMAN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Berkowitz, J.), dated May 21, 1986, which denied his motion to dismiss the complaint for lack of personal jurisdiction.
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, 475 N.Y.S.2d 298; De Zego v. Donald E. Bruhn, P.C., 99 A.D.2d 823, 472 N.Y.S.2d 823, affd. 67 N.Y.2d 875, 501 N.Y.S.2d 801, 492 N.E.2d 1217). 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, 442 N.Y.S.2d 463, 425 N.E.2d 851; see also, Ortiz v. Booth Mem. Med. Center, 94 A.D.2d 698, 699, 461 N.Y.S.2d 899). 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. Inds., 93 A.D.2d 734, 461 N.Y.S.2d 280). Nor may it be said that the defendant's commencement of a related action constituted a waiver of the defense.
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