NATIONAL LOAN INVESTORS v. PISCITELLO

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

NATIONAL LOAN INVESTORS, L.P., respondent, v. Philip PISCITELLO, Jr., appellant, et al., defendants.

Decided: August 22, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, FRED T. SANTUCCI, and PETER B. SKELOS, JJ. Joseph A. Piscitello, Smithtown, N.Y., for appellant. Delbello Donnellan Weingarten Tartaglia Wise & Wiederkeher, LLP, White Plains, N.Y. (Frank J. Haupel of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Philip Piscitello, Jr., appeals from an order of the Supreme Court, Suffolk County (Mullen, J.), dated December 8, 2004, which denied his motion, in effect, to vacate his default in answering and to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

 Generally, “[a]n appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer ․ By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction” (Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 140, 502 N.Y.S.2d 479).   Contrary to the appellant's contentions, he failed to demonstrate that the appearance of his attorney, Leif Rubenstein, on his behalf in this action, was unauthorized.   The documentary evidence established that Rubenstein was retained to provide representation in both a bankruptcy matter and this foreclosure action (cf. New Is. Investors v. Wynne, 251 A.D.2d 560, 674 N.Y.S.2d 593;  Greenpoint Sav. Bank v. Mione, 213 A.D.2d 375, 623 N.Y.S.2d 317).   Indeed, the appellant failed to explain how Rubenstein knew to file a notice of appearance in the foreclosure action other than as a result of the appellant having provided Rubenstein with a copy of the summons and complaint (see Simmons First Natl.Bank v. Mandracchia, 248 A.D.2d 375, 669 N.Y.S.2d 646).   In any event, the Supreme Court correctly determined that the appellant was properly served pursuant to CPLR 308(4) (see 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468;  Matrix Fin. Servs. Corp. v. McKiernan, 295 A.D.2d 579, 580, 744 N.Y.S.2d 706;  Simmons First Natl. Bank v. Mandracchia, supra;  Gross v. Fruchter, 230 A.D.2d 710, 711, 646 N.Y.S.2d 53).   Therefore, that branch of the appellant's motion which was to dismiss the action pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction was properly denied.

 The Supreme Court likewise correctly determined that the appellant's defense to foreclosure was without merit.   Even if the commencement of this action was barred by the statute of limitations (see EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605-606, 720 N.Y.S.2d 161), the appellant's bankruptcy filing, in which he acknowledged the mortgage debt and promised to repay it within six months, sufficed to extend the statute of limitations (see General Obligations Law § 17-105[1];  Albin v. Dallacqua, 254 A.D.2d 444, 679 N.Y.S.2d 402).   We note that there is no evidence properly in the record establishing that the plaintiff rejected the appellant's bankruptcy plan as this matter was raised for the first time in the appellant's reply papers on the motion (see Dobin v. Town of Islip, 11 A.D.3d 577, 579, 783 N.Y.S.2d 64;  Sanz v. Discount Auto, 10 A.D.3d 395, 780 N.Y.S.2d 763;  Rengifo v. City of New York, 7 A.D.3d 773, 776 N.Y.S.2d 865;  Martin v. New York Hosp., 295 A.D.2d 485, 486, 745 N.Y.S.2d 32).

The appellant's remaining contentions are without merit.

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