Summary
The New York Appellate Division, Second Department, reversed an order and judgment of foreclosure and sale because the plaintiff failed to obtain personal jurisdiction over the defendant. The court held that the defendant did not waive the jurisdictional defense by initially opposing a default-judgment motion, because he later asserted the defense within the period authorized by the trial court. Service on the defendant’s former attorney was ineffective because the attorney lacked authority to accept service on the defendant’s behalf.
Topics
Practice areas
Questions Presented
- Whether Klamm waived his objection to personal jurisdiction by appearing in the action before asserting the defense.
- Whether service of the summons and complaint on Klamm's former attorney, without proof that the attorney was authorized to accept service, established personal jurisdiction over Klamm.
- Whether the Supreme Court properly confirmed the referee's report and entered a judgment of foreclosure and sale despite the lack of personal jurisdiction.
Holdings
- Klamm did not waive the defense of lack of personal jurisdiction because the Supreme Court directed acceptance of his answer containing that defense and granted him 60 days to raise objections to service, and he moved to dismiss within that period.
- Service of the summons and complaint on Klamm's former attorney did not establish personal jurisdiction because the attorney was not shown to be an authorized agent for service of process.
- Because personal jurisdiction was never obtained, the April 12, 2021 orders had to be vacated, the foreclosure-related motion had to be denied, and the complaint had to be dismissed for lack of personal jurisdiction.
Key quotations
“A defendant may waive the issue of lack 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” (*1)
“Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308” (*2)
“An attorney is not automatically considered the agent of his client for the purposes of the service of process” (*2)
Factual background
Nationstar brought a foreclosure action involving real property in Islip. The summons, complaint, and RPAPL 1303 notice were delivered to Arthur Klamm's former attorney, who lacked authority to accept service on Klamm's behalf. Klamm's answer asserted lack of personal jurisdiction, and he moved to dismiss under CPLR 3211(a)(8) within the period allowed by the Supreme Court.
Procedural history
Nationstar commenced a mortgage foreclosure action in October 2015. Although service was purportedly made by delivery to defendant's former attorney, defendant opposed a default-judgment motion, later filed an answer asserting lack of personal jurisdiction, and moved under CPLR 3211(a)(8) to dismiss. The Supreme Court ultimately granted Nationstar summary judgment, appointed a referee, confirmed the referee's report, entered a judgment of foreclosure and sale, and denied defendant's motion to vacate the summary-judgment orders and dismiss for lack of personal jurisdiction. The Appellate Division reversed, vacated the April 12, 2021 orders, and dismissed the complaint for lack of personal jurisdiction.