Yonker v. Amol Motorcycles, Inc.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Hickman, J.), dated January 27, 1989, which granted the motion of the defendant Bayerische Motoren Werke, AG., pursuant to CPLR 3211, to dismiss the plaintiff’s amended complaint insofar as it is against it. Ordered that the order is affirmed, with costs. The plaintiff failed to obtain leave pursuant to CPLR 3025 (b) and 1003 to serve an "amended summons and complaint” purporting to join Bayerische Motoren Werke, AG. (hereinafter BMW), as a party defendant. Generally, unless there has been a waiver, the failure to obtain leave of the court constitutes a jurisdictional defect requiring dismissal of the action against the party so joined (see, Gross v BFH Co., 151 AD2d 452; Camacho v New York City Tr. Auth., 115 AD2d 691, 692; McDaniel v Clarkstown Cent. Dist. No. 1, 83 AD2d 624, 625; Catanese v Lipschitz, 44 AD2d 579). Since BMW asserted the defense of lack of personal jurisdiction in its answer and did not engage in any conduct sufficient to constitute a waiver of its right to object to the improper joinder, we find that the court properly dismissed the action against it. Kunzeman, J. P., Eiber, Sullivan and Balletta, JJ., concur.