Pligavko v. Chimples

Pligavko v Chimples 2026 NY Slip Op 05561 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Michael Pligavko, appellant, v John Chimples, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-09454, (Index No. 606631/22) Betsy Barros, J.P. Cheryl E. Chambers Janice A. Taylor Elena Goldberg Velazquez, JJ. Law Offices of E. Michael Rosenstock, P.C., Rockville Centre, NY, for appellant. [*1] DECISION & ORDER In an action, inter alia, to recover damages for trespass and for injunctive and declaratory relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated January 23, 2024. The order denied the plaintiff's unopposed motion for summary judgment on the amended complaint. ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination on the merits of the plaintiff's unopposed motion for summary judgment on the amended complaint. On or about June 18, 2021, the plaintiff acquired title to certain real property located in Suffolk County (hereinafter the subject property). The defendants owned a property immediately adjacent to the subject property. By summons and complaint dated April 1, 2022, the plaintiff commenced this action, inter alia, for injunctive and declaratory relief against the defendants related to certain improvements they had constructed and which the plaintiff alleged encroached upon the subject property. In separate stipulations dated July 12, 2022, September 28, 2022, and October 27, 2022, respectively, the plaintiff agreed to extend the defendants' time to respond to the complaint and the defendants agreed to waive all defenses related to service of process and lack of personal jurisdiction. On or about November 28, 2022, the defendants joined issue by service of an answer. Thereafter, the plaintiff filed an amended complaint in which he purported to correct the numbering of the paragraphs in the original complaint but did not change any of the allegations or claims. On or about February 5, 2023, the plaintiff moved for summary judgment on the amended complaint. The defendants apparently did not submit any papers in opposition to the plaintiff's motion. In an order dated January 23, 2024, the Supreme Court denied the plaintiff's [*2]unopposed motion for summary judgment on the amended complaint. In particular, the court, sua sponte, determined that it lacked personal jurisdiction over the defendants in the absence of an answer from them to the amended complaint, and therefore, the court denied the motion without making any determination regarding the merits. The plaintiff appeals. "Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, 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" (Matter of Weiss v County of Suffolk, 237 AD3d 949, 950 [internal quotation marks omitted]; see CPLR 320[b]; 3211[e]; Bayview Loan Servicing, LLC v Zelyakovsky, 202 AD3d 738, 741). "When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court" (Matter of Weiss v County of Suffolk, 237 AD3d at 950 [internal quotation marks omitted]). Here, the defendants waived the affirmative defense of lack of personal jurisdiction. The parties signed three separate stipulations, in which the plaintiff consented to extend the defendants' time to respond to the complaint, and in exchange, the defendants waived all defenses related to lack of personal jurisdiction. Additionally, the defendants submitted an answer to the original complaint, in which they raised various affirmative defenses but did not include the defense of lack of personal jurisdiction. Accordingly, the defendants waived the defense of lack of personal jurisdiction, and the Supreme Court erred in, sua sponte, raising the issue of lack of personal jurisdiction and denying the plaintiff's motion for summary judgment on the amended complaint on that ground (see id.; Deutsche Bank Natl. Trust Co. v Carnevale, 221 AD3d 963, 964). "CPLR 3025(d) states, in pertinent part, that except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented" (Triolo v Greenwood, 216 AD3d 1035, 1036 [alteration and internal quotation marks omitted]; see CPLR 3025[d]). "Thus, CPLR 3025(d) expressly confers upon nisi prius courts the power to dispense with responses to amended pleadings, in their discretion" (Triolo v Greenwood, 216 AD3d at 1036 [internal quotation marks omitted]). The Supreme Court has the discretion to dispense "with the requirement that the defendants answer [an] amended complaint prior to addressing the plaintiff's summary judgment motion" (Cortes v Jing Jeng Hang, 143 AD3d 854, 855; see Triolo v Greenwood, 216 AD3d at 1036; Stephanie R. Cooper, P.C. v Robert, 78 AD3d 572, 573). Here, the amended complaint merely corrected an error to the paragraph numbering in the original complaint and did not make any substantive or other changes (see Cortes v Jing Jeng Hang, 143 AD3d at 855; Stephanie R. Cooper, P.C. v Robert, 78 AD3d at 573). Furthermore, the defendants joined issue on the plaintiff's original complaint and had ample opportunity to oppose the plaintiff's motion for summary judgment on the amended complaint (see Stephanie R. Cooper, P.C. v Robert, 78 AD3d at 573). Under these circumstances, the Supreme Court should have dispensed with the requirement that the defendants answer the amended complaint prior to the court addressing the plaintiff's summary judgment motion on the merits (see Triolo v Greenwood, 216 AD3d at 1036; Cortes v Jing Jeng Hang, 143 AD3d at 855; Stephanie R. Cooper, P.C. v Robert, 78 AD3d at 573). The plaintiff's remaining contention is without merit. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a determination on the merits of the plaintiff's unopposed motion for summary judgment on the amended complaint (see TD Bank, N.A. v Raphael, 236 AD3d 701, 703; Mitacchione v Ibarra-Alonso, 187 AD3d 891, 892). BARROS, J.P., CHAMBERS, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court