International Business Machines Corp. v. Murphy & O'Connell

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 28, 1990, which denied defendant’s motion for an order vacating a default judgment entered on September 21, 1989 against it in the total sum of $29,116.73, unanimously affirmed, without costs. Plaintiff commenced this action to recover amounts allegedly owed it by the defendant law firm under a lease arrangement for a photocopying machine. The action was commenced by service of a summons with notice on the defendant. In response to the summons with notice, defendant did not serve a demand for a complaint as required by CPLR 320 (a) and 3012 (b). Rather, defendant served an answer which consisted of a blank "Blumberg” form, with several blank spaces, which served as a general denial, but failed to plead the defense of lack of personal jurisdiction as required by [158] CPLR 3211 (e). The answer was rejected by IBM for failure to comply with CPLR 320 (a) and 3012 (b). Thereafter, IBM successfully moved in September 1989 for a default judgment based upon the defendant’s failure to appear. The failure to raise the defense of lack of personal jurisdiction in a responsive pleading constitutes a waiver of the defense (CPLR 3211 [e]), even where service of process is obviously defective. (See, DeAngelis v Friedman, 46 AD2d 66, appeal dismissed 38 NY2d 737.) The defendant served an answer, which at best constituted a general denial, and in which the defense of lack of personal jurisdiction was not asserted. Thus, even though the defendant’s claims based on alleged defects in service may raise a question of fact as the hearing court suggested, they are ineffectual, given the valid waiver. In order to vacate a default judgment pursuant to CPLR 5015 (a) (1), a defendant must demonstrate a meritorious defense to the cause of action together with a reasonable excuse for his failure to appear (Boorman v Deutsch, 152 AD2d 48, 51, lv dismissed 76 NY2d 889). Defendant relies on the rule that a motion predicated on lack of personal jurisdiction need not assert a meritorious defense because a judgment entered without obtaining either jurisdiction over the person of the defendant or a waiver of the issue of personal jurisdiction is ineffective and voidable. (Supra.) Here, we agree that no meritorious defense was set forth. Here, there was a waiver of the jurisdictional defense. While the timeliness of the service of defendant’s answer arguably raises a question of fact, plaintiff’s evidence that the summons was served on June 16, 1989 created a presumption that service was effected on that date (Quantum Heating Servs. v Austern, 100 AD2d 843), which was not rebutted by the defendant’s unsupported denial (see, Bloom v Kernan, 146 AD2d 916, 918). Concur—Milonas, J. P., Ross, Kassal, Smith and Rubin, JJ.