Matter of Williams v Ponte

Matter of Williams v Ponte 2016 NY Slip Op 08874 Decided on December 28, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 28, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.
2015-11838
(Index No. 6779/15)

[*1]In the Matter of Dana Williams, appellant,

v

Joseph Ponte, etc., et al., respondents.

Dana Williams, Bayshore, NY, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Ingrid R. Gustafson of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Deputy Commissioner of the New York City Department of Correction dated January 30, 2015, which terminated the petitioner's employment, the petitioner appeals from a judgment of the Supreme Court, Queens County (Taylor, J.), entered September 29, 2015, which denied the petition and, in effect, dismissed the proceeding without prejudice, for lack of personal jurisdiction.

ORDERED that the judgment is affirmed, with costs.

The sole issue raised by the petitioner on appeal is whether the Supreme Court had the authority to deny her petition on the ground of lack of personal jurisdiction without prejudice, because the respondents appeared in the proceeding and waived any objection to personal jurisdiction.

Contrary to the petitioner's contention, the respondents' attempts to procure an adjournment of the return date of the petition did not constitute a formal appearance in the proceeding, nor amount to a waiver of any objection to personal jurisdiction (see CPLR 320; Deutsche Bank Natl. Trust Co. v Gordon, 129 AD3d 769; Castillo v JFK Medport, Inc., 116 AD3d 899; Frederic v Israel, 104 AD3d 909; Parrotta v Wolgin, 245 AD2d 872; Pendergrast v St. Mary's Hosp., 156 AD2d 436, 437-438).

The petitioner's remaining contention is without merit.

Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed this proceeding without prejudice for lack of personal jurisdiction (see CPLR 304, 311[a][2]; see also Matter of Star Boxing, Inc. v DaimlerChrysler Motors Corp., 17 AD3d 372; Matter of Brown v Scully, 135 AD2d 713).

RIVERA, J.P., CHAMBERS, ROMAN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court