TRAVELERS INSURANCE COMPANY v. English and American Ins. Co. Ltd., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

TRAVELERS INSURANCE COMPANY, Plaintiff-Respondent, v. UNDERWRITING MEMBERS OF LLOYD'S OF LONDON, etc., et al., Defendants-Appellants, English and American Ins. Co. Ltd., et al., Defendants.

Decided: June 17, 1997

Before MILONAS, J.P., and ELLERIN, NARDELLI, WILLIAMS and MAZZARELLI, JJ. Brendan M. Kennedy, for Plaintiff-Respondent. Mary Ann D'Amato, for Defendants-Appellants.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 20, 1996, which granted plaintiff's motion to require defendants to post preanswer security of $1,554,138.84 in compliance with Insurance Law § 1213(c)(1), unanimously affirmed, with costs.

 Contrary to defendants' argument, the motion court did not conclude that the bonding requirement applied even if defendants had not transacted business in New York. Rather, the court found that defendants had engaged in purposeful activities in this State.   We note that defendants' contentions with respect to the purported lack of jurisdiction were not advanced in the appropriate context, there having been no motion to dismiss on that ground, nor a jurisdictional affirmative defense in the answer;  indeed, defendants conferred jurisdiction by serving such an answer.   While we make no finding as to whether defendants had engaged in any of the activities enumerated in Insurance Law § 1213(b)(1), whether they had done so is immaterial since the statute does not make the obligation to post security contingent upon the manner of service (see, Curiale v. Ardra Ins. Co., 189 A.D.2d 217, 219, 595 N.Y.S.2d 186;  211 A.D.2d 473, 621 N.Y.S.2d 315;  affd.88 N.Y.2d 268, 644 N.Y.S.2d 663, 667 N.E.2d 313) or the type of purposeful activity providing the basis for the exercise of in personam jurisdiction.   We agree with the motion court's conclusion that the exception to the bonding requirement in Insurance Law § 1213(e) and § 2117 was inapplicable under the circumstances.   We have considered defendants' other arguments and find them to be without merit.

MEMORANDUM DECISION.