On August 15, 2022, Justice Knipel of the Kings County Commercial Division issued a decision in Sutherland Commercial Mtge. Trust 2018-SBC7 v. Celia Realty Inc., 2022 NY Slip Op. 32810(U), holding that a brief delay in moving to dismiss for lack of personal jurisdiction did not waive the defense, explaining:
Contrary to plaintiff’s position, where, as here, Dr. Alerte’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived. Likewise unavailing is plaintiff’s further contention that Dr. Alerte waived the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss. Dr. Alerte’s 2½-month’s long delay between his notice of appearance filed on December 15, 2021, and the instant pre-answer motion to dismiss filed on March 2, 2022 was not sufficiently extensive (particularly, when viewed In the context of the intervening expiration of the pandemic-related moratorium on January 15, 2022) to constitute a waiver.
(Internal quotations and citations omitted).