FOOTE v. FOOTE (2026)

DECISION & ORDER

In an action, inter alia, for the partition and sale of real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Eileen C. Daly–Sapraicone, J.), dated March 29, 2024.  The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate two orders of the same court (Roy S. Mahon, J.) dated June 10, 2019, and September 5, 2019, respectively.

ORDERED that the order dated March 29, 2024, is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019, is denied.

In 2018, the plaintiff commenced this action against the defendant, his brother, inter alia, for the partition and sale of certain real property located in Nassau County.  On October 31, 2018, the plaintiff's summons with notice purportedly was served upon the defendant by affix and mail (see CPLR 308[4] ).  In a letter to the Supreme Court dated November 16, 2018, the defendant stated, among other things, that he would be representing himself in this litigation.  In December 2018, the plaintiff filed a verified complaint and served copies upon the defendant by mail and email.

In February 2019, the plaintiff moved, inter alia, for summary judgment on the complaint.  In a letter to the Supreme Court dated March 8, 2019, the defendant represented that he could not attend oral argument the following week and expressed his interest in selling the property.  In an order dated June 10, 2019, the court granted the plaintiff's motion as unopposed.  In an order dated September 5, 2019, the court directed the sale of the property and an accounting.

In June 2022, the defendant sold the property.

In October 2023, the defendant moved, among other things, pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019.  In an order dated March 29, 2024, the Supreme Court, inter alia, granted that branch of the defendant's motion, vacating the orders dated June 10, 2019, and September 5, 2019, for lack of personal jurisdiction.  The plaintiff appeals.

“Pursuant to CPLR 5015(a)(4), ‘[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ․ lack of jurisdiction to render the judgment or order’ ” (Blue Lagoon, LLC v. Reisman, 214 A.D.3d 938, 940, 186 N.Y.S.3d 304).

“A defendant may waive the issue of ․ personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” (BAC Home Loans Servicing, L.P. v. Davis, 241 A.D.3d 1231, 1231–1232, 238 N.Y.S.3d 730 [internal quotation marks omitted] ).  “A defendant may appear informally by actively litigating the action before the court” (id. at 1232, 238 N.Y.S.3d 730 [internal quotation marks omitted];  see USF & G v. Maggiore, 299 A.D.2d 341, 342–343, 749 N.Y.S.2d 555).  “When a party becomes ‘an actor in a suit’ is often a question of degree and of evaluation of the particular facts (Henderson v. Henderson, 247 N.Y. 428, 432, 160 N.E. 775), but his [or her] participation in the merits is certainly one way in which a defendant will be prevented from thereafter contesting jurisdiction of his [or her] person” (Revona Realty Corp. v. Wasserman, 4 A.D.2d 444, 449, 166 N.Y.S.2d 960;  see Henderson v. Henderson, 247 N.Y. at 433, 160 N.E. 775).  By participating in a lawsuit on the merits, a party “indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” (BAC Home Loans Servicing, L.P. v. Davis, 241 A.D.3d at 1232, 238 N.Y.S.3d 730 [internal quotation marks omitted] ).

Here, the defendant waived the defense of lack of personal jurisdiction by submitting a letter to the Supreme Court addressing the merits of the action and stating that he would represent himself in the action, all without objecting to the court's jurisdiction (see Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481).  Moreover, more than four years after the commencement of this action, the defendant successfully moved to restore the action to the active calendar and sought further affirmative relief without moving to dismiss the complaint for lack of personal jurisdiction (see BAC Home Loans Servicing, L.P. v. Davis, 241 A.D.3d at 1232, 238 N.Y.S.3d 730).

“The ‘failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void’ ” (Deutsche Bank Trust Co. Ams. v. Knights, 231 A.D.3d 1016, 1018, 221 N.Y.S.3d 548, quoting U.S. Bank Trust, N.A. v. Johnson, 201 A.D.3d 841, 842, 157 N.Y.S.3d 393).  Here, however, the record demonstrates that the defendant received proper notice of the plaintiff's motion for summary judgment.  The affirmation of the plaintiff's counsel representing, under penalty of perjury, that he personally mailed the plaintiff's motion, inter alia, for summary judgment to the address designated by the defendant for that purpose gives rise to a presumption of proper service (see CPLR 2103[b][2];  [c];  Liberty Mut. Ins. Co. v. Five Boro Med. Equip., Inc., 130 A.D.3d 465, 465–466, 13 N.Y.S.3d 385), and the defendant's submissions were insufficient to overcome this presumption.  The fact that the date of a separate affirmation of service indicates that the plaintiff's counsel served the proposed order upon the defendant rather than the signed order did not deprive the Supreme Court of jurisdiction to entertain the plaintiff's motion (see Lowinger v. Lowinger, 125 A.D.2d 370, 370, 509 N.Y.S.2d 96).

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 5015(a) to vacate the orders dated June 10, 2019, and September 5, 2019.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.