et al., Plaintiff, v. UPTOWN COLLISION INC (1997)

In a negligence action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 13, 1996, which denied their motion to dismiss the action.

ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the complaint is dismissed.

The court erred in holding that the defendants waived the defense of lack of personal jurisdiction asserted in their answer.   Neither their counterclaim for indemnification (see, Textile Technology Exch. v. Davis, 81 N.Y.2d 56, 58-59, 595 N.Y.S.2d 729, 611 N.E.2d 768) nor their participation in discovery (see, Calloway v. National Servs. Inds., 93 A.D.2d 734, 461 N.Y.S.2d 280, affd. 60 N.Y.2d 906, 470 N.Y.S.2d 583, 458 N.E.2d 1260;  see also, Beris v. Miller, 128 A.D.2d 822, 513 N.Y.S.2d 744;  McNeely v. Harrison, 208 A.D.2d 909, 617 N.Y.S.2d 879) constituted a waiver of that defense.   Since the court had no personal jurisdiction over the defendants, the motion to dismiss should have been granted.

MEMORANDUM BY THE COURT.