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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

150 West End Owners Corp. v. Chestnut Holdings of N.Y. Inc., 49 Misc. 3d 1147 (2015)

Citation
150 West End Owners Corp. v. Chestnut Holdings of N.Y. Inc., 49 Misc. 3d 1147 (2015)
Parent Document
150 West End Owners Corp. v. Chestnut Holdings of N.Y. Inc., 49 Misc. 3d 1147 (2015)
Jurisdiction
New York (state)
Effective Date
2015-09-25

Full Text

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When a respondent interposes a counterclaim that is unrelated to a plaintiff’s claim, it waives any personal jurisdiction defense it may have had since it is taking affirmative advantage of the court’s jurisdiction. (Textile Tech. Exch. v Davis, 81 NY2d 56, 58-59 [1993].) In Textile, the counterclaims at issue were not related because they concerned a transaction distinct from that described in the complaint. In keeping with Textile, when a respondent asserts lack of personal jurisdiction as an affirmative defense in a nonpayment proceeding and *1149simultaneously asserts a counterclaim that is unrelated to nonpayment of rent, any objection as to personal jurisdiction by the respondent is waived. (See ROL Realty Co. LLC v Gordon, 29 Misc 3d 139[A], 2010 NY Slip Op 52048[U] [App Term 1st Dept 2010] [tenant waived jurisdictional defense because it introduced counterclaims for harassment, discrimination and overcharge, regardless of the fact that it stipulated to withdraw two unrelated counterclaims]; 390 Park Ave. Assoc., LLC v Sopher, 2009 NY Slip Op 31134 [U] [Sup Ct, NY County 2009] [tenant of a commercial garage space waived personal jurisdiction defense by interposing unrelated counterclaim for unpaid parking fees]; see also 405 East 56th St., LLC v Steginsky, 2013 NY Slip Op 30427 [U] [Civ Ct, NY County 2013]; 374 E. Parkway Common Owners Corp. v Albernio, 32 Misc 3d 1240[A], 2011 NY Slip Op 51654[U] [Civ Ct, Kings County 2011].) The assertion of even one unrelated counterclaim out of many will result in a waiver of the defense of lack of personal jurisdiction. (See Textile, 81 NY2d at 58-59 [“(Asserting an unrelated counterclaim does waive such defense because defendant is taking affirmative advantage of the court’s jurisdiction” (emphasis added)]; N.A.S. Holdings, Inc. v Pafundi, 12 AD3d 751, 752 [3d Dept 2004].)