Lig Shing Zee v. Hwa-Min Hsu

Order, Supreme Court, New York County (Edward Lehner, J.), entered May 7, 1998, which, to the extent appealed, denied defendant-appellant’s motion to dismiss the complaint pursuant to CPLR 3211 and 3212, unanimously affirmed, with costs. Any unwaived jurisdictional claims appellant may have had related to personal and not subject matter jurisdiction and were, moreover, resolved in a prior order of the IAS Court not now before us. In any event, since the action was commenced prior to the January 1, 1993 advent of the CPLR’s “commencement by filing” provisions, “plaintiffs failure to file proof of service until more than three years after [service had been effected] was a nonjurisdictional defect that, absent prejudice, could be cured by the granting of leave to file nunc pro tunc” (Rahi v Fang, 245 AD2d 13, 14). We agree with the IAS Court that plaintiffs have sufficiently alleged wrongs upon them individually to bring an action in their own right (see, Abrams v Donati, 66 NY2d 951, 953; International Credit Brokerage Co. v Agapov, 249 AD2d 77, 78). We have considered appellant’s other arguments and find them to be without merit. Concur — Lerner P. J., Sullivan, Rosenberger, Ellerin and Rubin, JJ.