Apicella v. Valley Forge Military Academy & Junior College , 97 A.D.2d 392 ( 1983 )

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated April 27, 1983, as, upon granting its renewed motion to vacate its default in answering and for leave to serve a late answer, conditioned the grant of leave on the deletion from the answer of the defense of lack of personal jurisdiction. Order reversed, insofar as appealed from, as a matter of discretion, with costs, and defendant’s motion granted unconditionally. The only issue before this court is whether defendant can properly be prevented, as a condition for serving a late answer, from pleading an alleged lack of in personam jurisdiction as a defense. In other words, is such a condition a term “as may be just” under CPLR 2004? If the record supported a conclusion that defendant had waived this defense (see, e.g., Osserman v Osserman, 92 AD2d 932), then we would have no inhibition against upholding such a requirement as a shorthand way of striking a meritless defense (CPLR 3211, subd [b]). However, there is no evidence in the present record showing a waiver. Furthermore, the prejudice alleged by plaintiffs as resulting from the assertion of the defense has no relation to the fact that the answer was tardy, but would exist whenever service was performed. We thus conclude that imposing this condition was an improvident exercise of discretion, and defendant’s answer should be deemed to include the defense of lack of in personam jurisdiction in the form proposed in its moving papers (cf. Smith v Pach, 30 AD2d 707). The motion for leave to serve a late answer, when first before the court, was denied for lack of an affidavit showing a meritorious defense, with leave to renew. Upon renewal showing a meritorious defense, the court imposed a condition that the defense not be pleaded. In their brief on appeal, plaintiffs argue that defendant’s actions since the entry of the order now being appealed from demonstrate a waiver of the jurisdictional defense. Such is beyond the purview of this appeal. If plaintiffs be so advised, they may bring a motion to strike the defense (see Ortiz v Booth Mem. Med. Center, 94 AD2d 698; Calloway v National Servs. Inds., 93 AD2d 734). Of course, we now express no view on the merits of whether personal jurisdiction under either CPLR 301 or 302 exists in this case, or whether defendant’s actions subsequent to Special Term’s order might constitute a waiver of the defense of lack of personal jurisdiction. Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.