Marie Jose Clermont, Plaintiff–Appellant, v. LLC

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Supreme Court, Appellate Division, First Department.

Marie Jose Clermont, Plaintiff–Appellant, v. Sahar Abdelrehim, et al., Defendants, Intra–Op Monitoring Services, LLC, Defendant–Respondent.

2272– 2273

Decided: November 22, 2016

Friedman, J.P., Saxe, Richter, Gische, Kapnick, JJ. Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellant. Litchfield Cavo LLP, New York (Michael R. L'Homme of counsel), for respondent.

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Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 29, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to strike the affirmative defense of lack of personal jurisdiction interposed by defendant Intra–Op Monitoring Services, LLC (IOM), and granted the cross motion of IOM to dismiss the action as against it, unanimously reversed, on the law, without costs, plaintiff's motion to strike granted and IOM's cross motion to dismiss the complaint as against it denied.

The complaint should not have been dismissed as against IOM, since IOM failed to move to dismiss on the grounds of lack of personal jurisdiction within 60 days after serving its answer (CPLR 3211[e] ).  Although defense counsel had hired an investigator to determine whether IOM was still in business, there was sufficient information within the 60–day time limit upon which to move.  Thus, counsel failed to make a showing of undue hardship so as to extend the statutory deadline

(see Wiebusch v. Bethany Mem. Reform Church, 9 AD3d 315 [1st Dept 2004];  Aretakis v. Tarantino, 300 A.D.2d 160 [1st Dept 2002] ).

In view of the foregoing, we do not reach the issue of whether service was properly effected.

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CLERK