Practice point: 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. A defendant appears formally by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. A defendant may appear informally by actively litigating the action before the court.
Application: The defendant's participation in settlement conferences pursuant to CPLR 3408 and the limited notice of appearance filed for that purpose did not demonstrate a clear intent to participate in the lawsuit on the merits, and, thus, did not constitute a formal or informal appearance. However, the defendant's counsel later filed a general notice of appearance, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time or assert lack of personal jurisdiction in a responsive pleading. By waiting another 3½ years before making a cross-motion to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant's contention that the plaintiff waived this issue by failing to raise it in opposition to the cross-motion or at the hearing to determine the validity of service of process upon the defendant is without merit.
Accordingly, since the defendant waived the issue of lack of personal jurisdiction, the Supreme Court erred in granting that branch of the defendant's motion which was to restore to the calendar that branch of her cross-motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, and, in effect, granting that branch of the cross-motion.
Federal Natl. Mtge. Assn. vs. Cassis, NY Slip Op 05381 (2d Dep't September 23, 2026)
