Upon the following papers numbered 1 to 9 read on this motion to appoint a referee to compute and cross motion to extend time to answer;Notice of Motion/Order to Show Cause and supporting papers 1-4;Notice of Cross Motion and supporting papers: 5-8;Opposing papers: 9;Reply papers _;Other _;it isMEMO DECISION & ORDER
*1 ORDERED that the motion (#002) by the plaintiff for, among other things, a default judgment and the appointment of a referee to compute, is withdrawn at plaintiff’s request; and it is further ORDERED that the cross motion (#003) by the defendant, Ki Lee, to dismiss the action or, in the alternative, for leave to file and serve a late answer, reschedule the settlement conferences, and permit discovery, is denied in its entirety; and it is furtherORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(3).This is an action for foreclosure. On May 24, 2006, defendant Ki Lee borrowed $367,000.00 from plaintiff’s predecessor in interest, and executed a promissory note and mortgage. Since February 1, 2009, the defendant has failed to pay the monthly installments due and owing. This action was commenced by filing on January 28, 2015. On October 30, 2015, plaintiff submitted a motion (#001) for default judgment and the appointment of a referee to compute. On June 17, 2016, that motion was denied with leave to renew (Martin, A.J.S.C.). On August 5, 2016, defendant Ki Lee filed a notice of appearance through counsel. The matter was reassigned to this Part pursuant to Administrative Order No. 110-17, dated September 28, 2017.On November 9, 2017, the plaintiff filed a motion (#002) for a default judgment and appointment of a referee to compute. The defendant cross moved (#003) for dismissal or, in the alternative, leave to file a late answer, reschedule the settlement conferences, and permit discovery. The plaintiff’s motion (#002) was subsequently withdrawn by correspondence dated December 12, 2017. Therefore, the cross motion (#003) is the sole motion considered herein.At the outset, the Court notes that the title of defendant’s motion notes that he seeks, amongst other things, dismissal of the action. However, the defendant has failed to affirmatively provide any basis for dismissal, and makes only one fleeting mention of CPLR 3211(a)(8) in counsel’s affirmation. While that branch of defendant’s motion should be denied for that reason alone, the Court considers the request for dismissal based on lack of personal jurisdiction in accordance with the defendant’s remaining arguments.A “defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR 320[a]). Additionally, pursuant to CPLR 320(b), “[a]n appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in [CPLR 3211]” (CPLR 320[b]). Here, although the defendant filed his notice of appearance in August 2016, has failed to move or otherwise assert any objection to jurisdiction until over sixteen months later with the filing of the instant cross motion. Because the defendant did not timely move to dismiss on the ground of lack of jurisdiction or assert it in a responsive pleading, the defendant has waived the defense of lack of personal jurisdiction (see American Home Mtge. Serv., Inc. v. Arklis, 150 AD3d 1180, 1181-82, 56 NYS3d 332 [2d Dept 2017], Countrywide Home Loans Serv., LP v. Albert, 78 AD3d 983, 984, 912 NYS2d 96 [2d Dept 2010]; Ohio Sav. Bank v. Munsey, 34 AD3d 659, 826 NYS2d 321 [2d Dept 2006]; Matter of Woicik v. Town of E. Hampton, 207 AD2d 356, 357, 616 NYS2d 203 [1994]). The portion of the cross motion seeking dismissal pursuant to CPLR 3211(a)(8) is, therefore, denied.
