Deutsche Bank Natl. Trust Co. v Ned, 2014 NY Slip Op 01122 [1st Dept. 2014]
In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.
CPLR R. 320 Defendant's appearance
Goonan v New York City Tr. Auth., 2010 NY Slip Op 04742 (App. Div., 2nd, 2010)
A plaintiff may seek leave to enter a default judgment when a defendant,
among other things, has failed to appear within the time required (see
CPLR 3215[a]; Okeke v Ewool, 66 AD3d 978, 979). A defendant
appears, inter alia, by serving an answer upon the plaintiff (see
CPLR 320[a]; Cerrito v Galioto, 216 AD2d 265, 266; cf. Ahmad v
Aniolowiski, 28 AD3d 692, 693). Contrary to the plaintiff's
contention, there is no statutory or other requirement that an answer,
timely served upon a plaintiff, must also be filed with the clerk of the
relevant court in order for a defendant to appear in the action. Here,
the defendant appeared in the action by timely serving its answer upon
the plaintiff (see CPLR 320[a]; Siegel, NY Prac § 110, at 199
[4th ed]) and, therefore, there was no default.