Foote v Foote
Attorneys and Parties
Brief Summary
Real property dispute involving partition and sale of jointly owned property and whether prior orders could be vacated for lack of personal jurisdiction.
The Supreme Court, Nassau County, granted the defendant's motion under CPLR 5015(a)(4) [the court which rendered a judgment or order may relieve a party from it upon the ground of lack of jurisdiction to render the judgment or order] to vacate 2019 orders, finding lack of personal jurisdiction.
The Appellate Division reversed the portion of the March 29, 2024 order that vacated the June 10, 2019 summary judgment order and the September 5, 2019 order directing sale of the property and an accounting.
The defendant waived any objection to personal jurisdiction by informally appearing, telling the court he would represent himself, addressing the merits, and later seeking affirmative relief without raising the jurisdictional defense. The record also showed proper notice of the plaintiff's summary judgment motion, and the defendant failed to rebut the presumption of mailing.
Background
In 2018, Gary Foote sued his brother, Frederick Foote, for partition and sale of Nassau County real property. The summons with notice was purportedly served by affix and mail under CPLR 308(4) [affix and mail service]. Frederick later wrote to the court stating he would represent himself and also communicated about the merits, including his interest in selling the property. After Gary served the complaint, he moved for summary judgment in February 2019. Frederick sent a March 8, 2019 letter saying he could not attend oral argument. The Supreme Court granted the motion as unopposed on June 10, 2019, and on September 5, 2019 directed sale of the property and an accounting. The property was sold in June 2022. In October 2023, Frederick moved to vacate the 2019 orders for lack of personal jurisdiction.
Lower Court Decision
The Supreme Court held that the 2019 orders should be vacated for lack of personal jurisdiction and granted the defendant relief under CPLR 5015(a).
Appellate Division Reversal
The Appellate Division reversed insofar as appealed from and denied the branch of the defendant's motion seeking vacatur of the June 10, 2019 and September 5, 2019 orders. It held that the defendant had waived the personal jurisdiction defense by appearing informally and participating on the merits without objecting. It further held that plaintiff's counsel's affirmation established proper mailing of the summary judgment motion under CPLR 2103(b)(2), (c) [service by mail], creating a presumption of service that the defendant did not overcome, and that any issue concerning service of a proposed order did not deprive the court of jurisdiction over the motion.
Legal Significance
The decision reinforces that in New York practice, a party can waive objections to personal jurisdiction not only by formal appearance but also by informal participation that shows submission to the court's authority. It also confirms that competent proof of mailing creates a presumption of proper notice, and later attempts to undo dispositive orders on jurisdictional grounds will fail where the party actively litigated without timely preserving the defense.
A litigant who communicates with the court on the merits, appears pro se, and later seeks affirmative relief without timely raising lack of personal jurisdiction cannot wait years to attack prior orders as void for jurisdictional defects.