Wilmington Trust, Nat'l Ass'n v. Pape

169 A.D.3d 1100

92 N.Y.S.3d 890 (Mem)

WILMINGTON TRUST, NATIONAL ASSOCIATION, etc., Respondent,

v.Christopher PAPE, et al., Defendants,134 Eel Pot Alley, LLC, Appellant.

2017–02109

Index No. 606468/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 8, 2018

February 27, 2019

Zimmerman Law, P.C., Huntington Station, N.Y. (Naomi Trainer of counsel), for appellant.

Sandelands Eyet, LLP, New York, N.Y. (Alina H. Eyet of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant 134 Eel Pot Alley, LLC, appeals from an order of the Supreme Court, Suffolk County (Peter H. Mayer, J.), entered February 17, 2017. The order denied that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

We agree with the determination of the Supreme Court that service upon a foreign limited liability company such as the defendant 134 Eel Pot Alley, LLC (hereinafter the defendant), by personal delivery to the defendant's authorized agent was proper under CPLR 311–a. Moreover, the plaintiff's re-service of the summons and verified complaint pursuant to CPLR 311–a during the pendency of the defendant's motion to dismiss obviated the defendant's jurisdictional objection (see Rosenberg v. Trazzera, 147 A.D.3d 1099, 48 N.Y.S.3d 204 ; Bank of Am., N.A. v. Valentino, 127 A.D.3d 904, 4 N.Y.S.3d 908 ; IBJ Schroder Bank & Trust Co. v. Zaitz, 170 A.D.2d 579, 566 N.Y.S.2d 871 ).

The defendant's remaining contentions concerning the timeliness of the re-service and the sufficiency of the affidavit of service are improperly raised for the first time on appeal (see R & B Design Concepts, Inc. v. Wenger Constr. Co., Inc., 153 A.D.3d 864, 60 N.Y.S.3d 364 ; Village of Kiryas...