Berti v. Berti

In an action for divorce and related relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Friedenberg, J.), dated November 13, 1987, which denied his motion to cancel a lis pendens and for dismissal of the complaint based upon lack of personal jurisdiction. Ordered that the order is affirmed, with costs. The Supreme Court properly found that jurisdiction over the defendant was obtained by virtue of the service upon him pursuant to CPLR 308 (1) of a summons with notice (see, Domestic Relations Law § 232 [a]; CPLR 3102 [b]; McLaughlin, 1977 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C305:3 [1989 Pocket Part, at 195]; see also, Parker v Mack, 61 NY2d 114, 117-119; Sibley v Lake Anne Realty Corp., 136 AD2d 619; Byrne v Fordham Univ., 118 AD2d 525, 526). Since the defendant never moved to dismiss the action for failure to timely serve a complaint (see, CPLR 3012 [b]), the action remained viable at the time the complaint was served (see, Bal v Court Employment Project, 73 AD2d 69, 71; Weinstein v General Motors Corp., 51 AD2d 335, 336). As a result, the court properly denied the defendant’s motion to dismiss the action and to cancel the lis pendens based upon a lack of jurisdiction. Bracken, J. P., Kooper, Harwood and Balletta, JJ., concur.